April 9, 2008 | By corynne mcsherry

Liberate the B-24 Liberator!

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 “B-24,” which Lockheed managed to register as a mark for use in connection with scale models of airplanes. That’s right, Lockheed Martin claims the right to control use of the term “B-24” in connection with models of, um, B-24s.

It is perplexing that this mark was granted in the first place, given that the term “B-24” is nothing more than a U.S. military model number used to describe the plane itself (descriptiveness is a traditional basis for rejection; that’s why you can’t register a trademark on the use of the term “cyberlaw” in connection with the practice of technology law). MacNeill’s 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 “model”) 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 MacNeill’s 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, there’s usually no counter-notice procedure. If targets of overreaching trademark claims can’t 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 doesn’t give you a right to control everyday use of regular descriptive terms. Hoping to provide a little of that necessary education, we’ve sent an open letter to Lockheed’s licensing agency, demanding that they withdraw their improper objections so that Mr. MacNeill can go about his perfectly legitimate business.

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