May 21, 2008 | By corynne mcsherry

B-24 Liberated!

Last month we told you about Lockheed Martin's effort to use trademark infringement claims to cause the removal of digital images of classic military aircraft from TurboSquid, a stock images site. The central mark at issue was the term “B-24,” which Lockheed managed to register as a trademark for use in connection with scale models of airplanes. We sent an open letter to Lockheed’s licensing agency, demanding that they withdraw their improper objections. We're pleased to report that Lockheed has decided to withdraw its claim, and TurboSquid is putting the images back up forthwith.

This is a good outcome, but the problem remains. 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, it is much too easy for trademark owners like Lockheed to ignore fair use and shut down legitimate content. And not every target of improper claims is going to have the resources to push back.

One way to help prevent future overreaching claims is for trademark owners to learn that a trademark registration doesn’t give you a right to control everyday use of regular descriptive terms. Another is for large trademark owners to set up websites or email "hotlines" where the targets of trademark claims can seek review and prompt withdrawal of the claim if the takedown request was in error. Such a hotline won't stop real abuse, but will provide a relatively painless way for trademark owners to correct honest mistakes. Finally, service providers should institute a form of counter-notice procedure that would allow those who believe they have been accused unfairly to quickly determine the basis for a takedown, and request reconsideration. Real infringers won't bother to take advantage of such a procedure, but fair users could use it to show that their use is permissible (and therefore does not put the service provider at risk).

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