US Military Looking To Trademark Everything

Legal Issues

from the because...-money dept

Fri, Feb 14th 2014 3:48am — Mike Masnick

As we've noted plenty of times in the past, works produced by the federal government are not subject to copyright. However, they are (almost inexplicably) subject to both patent and trademark protection, where those things apply. A little while back, Jim Gourley over at Foreign Policy looked into how the Pentagon has gone trademark slap happy over the last five years or so (the headline of the article falsely implies that it has also gone copyright happy, despite barely mentioning copyright, and in the one spot it does, totally confusing copyright and trademarks).

The program began in 2007 when the Defense Department issued a directive calling for the component services to establish a branding and trademark licensing office, which would answer to the DOD level through a separate office working for the undersecretary of defense for public affairs. Holding to its tradition of being first in the fight, the Marines were the most aggressive in the early going. In 2009, they began contacting large-scale print-on-demand t-shirt suppliers Zazzle and CafePress. It immediately shut down several small online retailers of military-themed hats and shirts. It even came up with rules applying to USMC-themed stuff sold on Etsy.

The other services quickly caught up. Between 2007 and 2011, sales of officially-licensed U.S. Army merchandise increased from $5 million to $50 million

It does note that the military seems to realize that going after small retailers who are selling things face-to-face isn't wise, because "they're probably engaging in healthy patriotism." But, anyone else may be facing a bill from the Defense Department -- an organization that probably has the world's largest budget already. This should raise serious questions about why the US government should be granted trademarks in the first place. Yes, you could argue that the Defense Department doesn't want "shoddy" military merchandise out there, but is that really something the government needs to be concerned about? The US government isn't supposed to be a commercial enterprise. It could easily highlight and focus on "official" military gear to distinguish it from unofficial gear, without having to show up and force everyone else selling military-themed t-shirts that they need to kick back an extra "licensing" fee on top of any taxes they already have to pay.

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Filed Under: dod, pentagon, trademark
Companies: cafepress, zazzle

56 Comments

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Ninja (profile), 14 Feb 2014 @ 1:57am

Motherfucking Eagles�
Because we can.
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Anonymous Coward, 14 Feb 2014 @ 3:55am

Its how corporate people think, and as they have a major influence on government they are making th government act like a corporation.
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Anonymous Coward, 14 Feb 2014 @ 4:15am

Patents too...
I struggle to understand why the military needs patents at all. Wouldn't any innovation be necessarily funded by the public, and what market are they competing in that requires a monopoly? Unless the goal is to get the enemy to say "Crap! We can't build our new superweapon because the Americans have patented it! Our evil plans have once again been foiled by those crafty Americans -- WE'LL GET YOU SOMEDAY AMERICA!"
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That Anonymous Coward (profile), 14 Feb 2014 @ 4:17am

And they laughed at me when I said IP laws were becoming weaponized.
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Anonymous Coward, 14 Feb 2014 @ 4:32am

I suppose they have copyright on the tune

"Left .. left .. left right left
yer pants r baggy, yer boots r tight
yer balls r swinin' left to right ...."
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Anonymous Coward, 14 Feb 2014 @ 4:34am

"healthy patriotism"

lol - wtf, as opposed to unhealthy patriotism?
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Anonymous Coward, 14 Feb 2014 @ 5:12am

Re:
Well, at least they're not Terror Suspects!
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Anonymous Coward, 14 Feb 2014 @ 5:17am

Re: Re:
The IP laws or the military?
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Antsan (profile), 14 Feb 2014 @ 5:20am

Re:
Well, I'd say that patriotism is normally unhealthy and would surely count being proud of your military as unhealthy, but I guess that's an unpopular stance around here.
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scotts13 (profile), 14 Feb 2014 @ 5:34am

Hobby industry
A few years ago, military aircraft manufacturers (and, I believe, the Air Force) started looking for licensing fees from the manufacturers of model airplane kits. Apparently they believe the APPEARANCE of the aircraft is theirs, as opposed to having been bought and paid for by the American taxpayer. I haven't read much more about it, but I do know that since then the cost of models has jumped up significantly.
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Anonymous Coward, 14 Feb 2014 @ 5:41am

The US government isn't supposed to be a commercial enterprise.

what the hell?

Commercial enterprise = "An enterprise connected with commerce.

The US Government, or any Government for that matter IS THE ULTIMATE COMMERCIAL ENTERPRISE!
They provide a service, and they get paid to provide that service, if it is not 'commercial' what the hell is it?

The population under that Government is the 'customers' and the Government is "the organization".

It fixes prices (taxes) it provides goods and services for those fees.

If a Government is not supposed to be a commercial enterprise, what the hell is it supposed to be ?
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Anonymous Coward, 14 Feb 2014 @ 5:50am

Re:
@Anonymous Coward, Feb 14th, 2014 @ 5:41am

"and they get paid to provide that service"

Dude... the government 'takes' they do not 'get paid'. Neither is government an enterprise and neither is it commercial.

I have a choice to shop and Best Buy, but I do not have a choice to shop at USA Gov. I suppose next you will say that Slavery was an enterprise too? The fixed price (taxes) just happened to be the very flesh on their bones.
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Anonymous Coward, 14 Feb 2014 @ 5:51am

I wonder if waterboarding will be patented and/or trademarked?
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Pragmatic, 14 Feb 2014 @ 5:54am

Remember when some of us thought that running the country like a business would be a good thing? This is what it looks like in practice, friends and neighbors!
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Pragmatic, 14 Feb 2014 @ 5:59am

Re: Re:
Uh, slavery was an enterprise, and a lucrative one at that. Which is why it took so long to make it illegal. Needless to say, property rights were argued then. Here's one of the most egregious examples of the point I'm making:

http://www.understandingslavery.com/index.php?option=com_content&view=article&id=373& amp;Itemid=236

When the case was heard before Chief Lord Justice Mansfield, eminent counsel, notably the solicitor general John Lee argued vigorously that the killings were not a matter of murder or morality but solely involved a question of property and insurance
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Anonymous Coward, 14 Feb 2014 @ 6:17am

Re: Re: Re:
The brand.
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Anonymous Coward, 14 Feb 2014 @ 6:19am

If if this is a corporation when do the (tax payers)share holders get their check.
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Anonymous Coward, 14 Feb 2014 @ 6:23am

Re: Re: Re:
I stand corrected, Enterprise by definition includes any project that requires effort. Which machines Government and Slavery indifferent to the term.

I usually hate & berate people who fall victim to bastardizing words of the English language auto assigning them values of positive or negative towards them. I deserve the bitchslapping this time.
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Anonymous Coward, 14 Feb 2014 @ 6:26am

If a Government is not supposed to be a commercial enterprise, what the hell is it supposed to be ?

public, non profit service by The People and for The People?
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Anonymous Coward, 14 Feb 2014 @ 6:48am

As a taxpayer, I give you all permission to print as much USA crap as you want. Go Wild!
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Anonymous Coward, 14 Feb 2014 @ 6:51am

Re: Hobby industry
No...what did happen is that some aircraft manufacturers noted model makers were using the names of specific aircraft and marketing them in a way that suggested it was being done with the tacit approval of the manufacturers/military and for some purposes that did not necessarily reflect positively on both the manufacturer and the military services. The model makers were also using the well known names of certain manufacturer organizations, with the "Skunk Works" being but one notable example.

A decision was made by some manufacturers to secure trademarks for the names, a perfectly legitimate endeavor since they manufactured the aircraft bearing those names. Contracts with model makers were modest, with the only meaningful limitations being a modest royalty that was used in many, if not most instances, for charitable purposes, cooperation with the model makers to make their products as realistic and up to date as possible, etc. There was, however, a more compelling reason. Aircraft manufacturers from foreign countries are typically solicited and joint ventures formed to secure sales contracts in those foreign countries. Being "stockholder stewards", it is not at all unusual for foreign manufacturers to begin playing fast and loose with the product names for purposes far transcending the joint venture arrangements. It is here where a trademark can be beneficial to attempt curtailing such misuses.

BTW, when trademarks of this type were first applied for, the USAF went ballistic, one General even calling Lockheed Martin's CEO trying to cut him a new one. Fortunately, logic prevailed once it understood the motivations underlying why such trademarks were being secured.
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Anonymous Coward, 14 Feb 2014 @ 6:58am

Re:
The government is not a manufacturer. It is a user.

The government is not engaged in the sale/transfer/etc. of good to the public. Thus, if fails to meet necessary condition that the mark be used to distinguish its goods and services in the public marketplace.

No, the federal government does admittedly secure some trademarks, but the basis for such marks is seriously flawed and the trademarks likely invalid.

As for lines of clothing and other certifications, that may very well "fly", but as a matter of policy I happen to believe it is a waste of taxpayer resources. Of course, one way to drive this home to the military services that may wish to pursue such a policy is that they get to pay the freight out of their budgets for assigning people to do the necessary grunt work, but that every $ they may collect must be turned over immediately to the US Treasure. It may not be added to the agencies' respective budgets because that would represent an illegal augmentation of appropriated funds, a most definite and serious no-no.
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Wally (profile), 14 Feb 2014 @ 7:13am

Budget
My Aunt, who is a Lt. Colonel in Army Intel, was on the Defense Department's financial subcommittee trying to figure ways to save all the armed forces money because their budget was cut severely. How bad was the cut? They shut down 3 army and navy bases...which created a huge housing issue when she got restationed at Westpoint earlier this year.

Just remember one thing, the DOJ has a way larger budget...than the DoD.
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jupiterkansas (profile), 14 Feb 2014 @ 7:16am

Might as well trademark the American flag while they're at it. Anybody could stick that thing on anything and sell it.
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art guerrilla (profile), 14 Feb 2014 @ 7:27am

Re:
yep, that about sums it up...

so-o-o-o, i'm wondering if they go after the ten zillion military-themed video games, or is that simply good recruiting practice, so they'll ignore that ? ? ?

(and isn't that problematic: IF you go after one cohort for trademark traducing, don't you have to go after them all ?)
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Anonymous Coward, 14 Feb 2014 @ 8:03am

Re: Re:
"The government is not a manufacturer. It is a user.

The government is not engaged in the sale/transfer/etc. of good to the public. Thus, if fails to meet necessary condition that the mark be used to distinguish its goods and services in the public marketplace."

we did not say that, I said it was a commercial enterprise, in opposition to Masnick saying

"The US government isn't supposed to be a commercial enterprise."

The definition of a commercial enterprise is not "sale/transfer/ect" or goods.

An enterprise as already defined is anything that takes effort, and "commerce" means "a whole system of an economy that constitutes an environment for business".

Government takes effort and is a system of an economy that constitutes an environment for business".

As for your statement it is also incorrect, the Government builds roads, bridges and other infrastructure to enable business and commerce that would constitute "transfer/etc" in your definition.

Again, no one has stated IF Governments are not commercial enterprises then what are they?
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Anonymous Coward, 14 Feb 2014 @ 8:05am

Re:
depends on how many Government bonds you purchased !
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Pixelation, 14 Feb 2014 @ 8:07am

Why attack on the battlefield when you can just take 'em to court?
"Sue them all and let God sort them out"
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Anonymous Coward, 14 Feb 2014 @ 8:08am

Re: Re:
yes slavery sure was a commercial enterprise, as is drug dealing and selling lemon aid on the corner, in fact any effort (enterprise) put towards a commercial end is a commercial enterprise, Government or not, legal or not, ethical or not, and agreed with or not.

Unless you wish to fall back on TD tradition and redefine the meaning of words that is.
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Nick (profile), 14 Feb 2014 @ 8:10am

So by trademarking military insignia the US government is admitting that war really is a business.
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Anonymous Coward, 14 Feb 2014 @ 8:12am

Re:
I want to trademark my brand of waterboard equipment "U cant stand it, water boards"
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Anonymous Coward, 14 Feb 2014 @ 8:13am

Re:
'running it like a business' as opposed to "running it like a __________"
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Pragmatic, 14 Feb 2014 @ 8:14am

Re: Re: Re:
Citation?

TD doesn't do that, Darryl.
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Pragmatic, 14 Feb 2014 @ 8:15am

Re: Re:
... country, with citizens, not customers and/or shareholders."
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Anonymous Coward, 14 Feb 2014 @ 8:23am

Re: Re:
but you only have that choice because "USA Gov" has made it possible for Best Buy to exist, and to exist in your town, it built the roads leading from your house to Best Buy, it build the water/electricity/sewer/road/bridge systems, the airports and a million and one other things that enabled Best Buy and other business to operate to give you that choice, without USA Gov best buy would not be there, probably your town would not be there.

Building and maintaining this infrastructure and the system of commerce that relies on it, takes effect (enterprise) it also takes and makes commerce, it enables commerce and it provides commerce.

Governments are by definition and design MEANT to be commercial enterprises, if they are not, then what are they?
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Anonymous Coward, 14 Feb 2014 @ 8:32am

Re: Re: Re: Re:
and they don't censor posts either !!

but you can find the many examples yourself, with little effort, (but some understanding, and a dictionary).
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Anonymous Coward, 14 Feb 2014 @ 8:33am

Re: Re: Re:
So the US Government should be run like a country, you know with citizens !!! WOW..
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Anonymous Coward, 14 Feb 2014 @ 8:36am

Re: Re: Re:
and how are countries with citizens run like ?? could it be possibly like a commercial enterprise? with GDP and things like that?
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Anonymous Coward, 14 Feb 2014 @ 8:47am

Re:
being public and non-profit does not exclude you from being a commercial enterprise, most if not all are.
But you are right it is a service and a paid for service, it is not profit, even to the point of charging you LESS then the cost of the services provided, you get lower taxes but the same service and the Government has to borrow money to pay for those services, being profitable is not the definition of a commercial enterprise, nor is making profit.

But certainly Governments do enterprise to create commerce and therefore are by definition a commercial enterprise, non-profit, for or against the public makes no difference it is what it is, and not what Masnick wants you to think.

What Masnick said was:
The US government isn't supposed to be a commercial enterprise. I find that statement to be well, wrong. Masnick should not be so careless, if he can deceive about this what else?

IF the US Government is not supposed to be a commercial enterprise, again, what the hell is it supposed to be?

Or is his definition of a commercial enterprise somehow different to this?
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John Fenderson (profile), 14 Feb 2014 @ 9:21am

Re: Re: Re: Re: Re:
TD doesn't censor posts. Therefore, by your own logic, TD must not be redefining terms either. QED. If you disagree, you'll need to provide something like evidence.
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Anonymous Coward, 14 Feb 2014 @ 9:41am

Re:
Government and corporations act similarly because they are similar right down to the shielding of individual actors within the organizations from personal liability for their fuckups. But don't let that dissuade you from persisting in your delusion that if only there was more government and less corporations government would magically stop pulling stunts like this.
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Anonymous Coward, 14 Feb 2014 @ 9:48am

Re: Budget
> Just remember one thing, the DOJ has a way larger budget...than the DoD.

Man, I have got to get the brand of crack you're smoking.

Last year, the DoD spending was $672.9 billion dollars and the DoJ was less than 5.5% of that, at $36.5 billion, which includes the attorneys, a bunch of LEOs like the FBI, and the federal prison system.
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Gwiz (profile), 14 Feb 2014 @ 9:48am

Re: Re: Re: Re: Re: Re:
Therefore, by your own logic....

Careful now, you don't want a SWAT team showing up at your house with a no-knock warrant for the crime of logic infringement.
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Anonymous Coward, 14 Feb 2014 @ 9:57am

Federal copyright
While the article is correct that the Federal government may not copyright it's own works, a federal contractor may do so, and the ownership of that copyright may be transferred to the Federal government (though it's not a standard practice). The government may also purchase and own a copyright, though again that's rare/nonexistent in practice.
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Anonymous Coward, 14 Feb 2014 @ 11:27am

Re: Federal copyright
There is a provision that allows the USG to acquire a copyright by assignment, bequest or devise, but it may not be used to acquire as a matter of course under a government contract the assignment to a copyright from a private party. Frustratingly, there is only one case that has ever considered when one contracting with the government could assign something over to the USG and it could avoid the general rule of "no copyright may be secured". It is very limited in scope because it has a very unique (i.e., will virtually never arise again) set of facts, but it sits out there nonetheless for lawyers to try and twist into whatever shape suits their needs.

BTW, I happen to like government contractors acquiring copyright for works created under government contracts, but for two unique reasons. First, the absolute worst international competitor of US contractors is the USG itself. It is not at all unusual for it to tell a foreign government that they should ignore the private sector company and simply buy from the USG. Another reason is that other companies, both in the US and internationally, are forever in the mode of trying to steal the business of the original developer/manufacturer by leaving no stone unturned to finagle copies of all the critical manufacturing and follow-on support documents that they will use to bamboozle a procurement agency into believing that they can do the work on the cheap. When you are the developer/manufacturer, and contract continuation is critical in order to retain critical technical personnel, what these bozos say they can do (actually, they cannot) is a constant source of irritation that takes time away from doing silly things like product improvement, cost reduction, etc.
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Anonymous Coward, 14 Feb 2014 @ 12:33pm

Re: Patents too...
The patent law allows for the military to lodge patent in a system of classified, non-public patents, this sort of defeats the purpose of the patent system. this also is a known pile of secrets that is a target of spying.

But it does keep the Corporate military contractors happy.
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Anonymous Coward, 14 Feb 2014 @ 5:34pm

Re: Re: Re: Re: Re: Re:
Ah ok, so if I proved to you beyond any reasonable doubt, that TD DOES CENSOR POSTS (not readers 'hiding' posts), but TD BLOCKING people posting, (because they don't agree with that person).

By "HOLDING FOR MODERATION" FOREVER..... CENSORSHIP.

If you have been told by Masnick he does not censor posts, and I prove beyond doubt that he does, would you then accept that if Masnick can lie about something that important (TO YOU), that he is capable of lying about anything else as well? QED.

Just say the word and I will provide that proof, but I will do it on youtube, for ALL TO SEE..

Do you accept my challenge?

Would you accept that if he does censor, would you also accept he does like to redefine the meaning of words, (I don't need a youtube clip to prove that though).

So just say the word, and I will publicly post prove positive that Masnick lies about this important and fundamental issue.

I am sure you would like to know the truth, and if what you are told on TD is also the truth.

The truth will set you free..
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btrussell (profile), 14 Feb 2014 @ 6:42pm

Re: Re:
"IF the US Government is not supposed to be a commercial enterprise, again, what the hell is it supposed to be?"

http://en.wikipedia.org/wiki/Government

Just because you don't like google, doesn't mean you can't do a search.
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Sunhawk (profile), 14 Feb 2014 @ 11:19pm

On the whole, I wouldn't mind some portion of the money gotten from selling military-themed stuff headed to the Pentagon... if it resulted in lower amounts in the federal budget.

But there's no way that's happening.
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Anonymous Coward, 15 Feb 2014 @ 1:48am

Re: Re:
So, what you're saying is that the quantity of government bonds a person has determines when they get their check?
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Anonymous Coward, 15 Feb 2014 @ 11:51am

Yep, war is business.
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Niall (profile), 16 Feb 2014 @ 3:41am

Re: Re: Re: Re: Re: Re: Re:
If only it would set you 'free'. But then if you got 'free' truth you'd be a 'filthy dirty pirate' too? ;)
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Schr�dinger's Hat (profile), 16 Feb 2014 @ 10:56am

The feds
So, what if the federal government IS a corporation?

http://www.abodia.com/2/United-States-is-a-corporation.htm
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Anonymous Coward, 17 Feb 2014 @ 1:13am

darryl just hates it when due process is enforced.
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Pragmatic, 17 Feb 2014 @ 3:30am

Re: Re:
Isn't it funny how we never seem to get a clear definition of what "government" is.
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timmaguire42 (profile), 17 Feb 2014 @ 9:23am

" The US government isn't supposed to be a commercial enterprise. "

This gets to the heart of the Trademark issue. Since when does the military sell its equipment and clothing? I know there are Army/Navy stores, but SFAIK, they aren't actually supplied by the military.

So on what grounds do they claim trademark rights?
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