[Infowarrior] - Liberate the B-24 Liberator!

[Richard Forno]

http://www.eff.org/deeplinks/2008/04/liberate-b-24-liberator
April 9th, 2008
Liberate the B-24 Liberator!
Posted by Corynne McSherry

Who owns the B-24, the bomber that helped win World War II? U.S. taxpayers
paid for it, Consolidated Aircraft built it, U.S. military pilots flew it,
but Lockheed Martin says it owns the bomber‹or at least it owns the name.

Some readers may already be familiar with the case of John MacNeill, the
respected graphic artist and illustrator who had several digital images of
classic military aircraft removed from TurboSquid, a stock images site,
after Lockheed Martin claimed the images infringed its trademarks. The
central mark at issue? The term ³B-24,² which Lockheed managed to register
as a mark for use in connection with scale models of airplanes. That¹s
right, Lockheed Martin claims the right to control use of the term ³B-24² in
connection with models of, um, B-24s.

It is perplexing that this mark was granted in the first place, given that
the term ³B-24² is nothing more than a U.S. military model number used to
describe the plane itself (descriptiveness is a traditional basis for
rejection; that¹s why you can¹t register a trademark on the use of the term
³cyberlaw² in connection with the practice of technology law). MacNeill¹s
situation is a perfect example of why we need that rule. If Lockheed had its
way, no one could create 3-D images (or anything else that could be
construed as a ³model²) of famous military aircraft‹from the B-24 to the
F-117 Nighthawk, also known as the Stealth fighter.

But Lockheed should not have its way, because MacNeill¹s images are
protected by the nominative fair use doctrine. Nominative fair use means, in
a nutshell, that it is OK to use a mark to accurately identify a product if
using the trademark is necessary to identify the products, services, or
company you're talking about, and you don't use the mark to suggest the
company endorses you.

Unfortunately, the practicalities of the Internet make it all too easy for
trademark owners like Lockheed to ignore fair use and shut down legitimate
content. That is because online communication and commerce often depends on
intermediaries like TurboSquid, who may not have the resources or the
inclination to investigate trademark infringement claims. And, unlike the
copyright context, there¹s usually no counter-notice procedure. If targets
of overreaching trademark claims can¹t find counsel, they may have little or
no recourse against a determined trademark owner.

Trademark owners‹and the service providers they try to intimidate‹need to
learn that a trademark registration doesn¹t give you a right to control
everyday use of regular descriptive terms. Hoping to provide a little of
that necessary education, we¹ve sent an open letter to Lockheed¹s licensing
agency, demanding that they withdraw their improper objections so that Mr.
MacNeill can go about his perfectly legitimate business.