[hawkonevoodoo]

I remember about a year or so ago on the old forum there was some talk about Boeing and some lawyers were going to make it necessary to buy a license from them if anyone wanted to produce replicas of their airplanes. The big thing mentioned was that they weren't Boeings airplanes once they were bought and paid for, they now belonged to the military and become public domain. I know there is at least one good lawyer on the forum and I was wondering if he could enlighten me about this. Was this just a rumor or did it go through or what has become of it? If this did go through I'm sure that will drive the cost of die-cast models up. This topic just seemed to fade away without a resolution. Does anyone know anything about this?

[admin]

I remember that too. I believe that it was "Hoverbug" and "PH-LKK" who was in the know on legal matters. I had spoke with "mhackl" from OMI about this during that previous conversation and he told me that they could produce the P-51 Mustang they just couldn't produce the "North American" P-51 Mustang. Of course they are the same plane and only different in name.

Cheesy, I know.

[Old Crow]

This is not an area in which I practice so this is not bona fide legal advice, just a general discussion.

A trademark basically includes any word, name, symbol, or device, or any combination of these used in commerce to identify the goods of one manufacturer or seller from goods manufactured or sold by others, and to identify the source of the goods. In short, a trademark is a brand name.

Admin is correct about the manufacturer name. Take a look at your HobbyMaster Dauntless box, for example, and you will see the Boeing name and logo along with the words Officially Licensed Product. However, the rules are more complicated. Gemini does not appear to show a license to use a trademark, such as Supermarine or North American, but there could be a number of reasons why, and I do not know whether a user must indicate a license has been obtained.

Of course, manufacturers do, on occasion, appropriate trademarks for commercial use without permission or compensation. Trademark holders can seek redress, including compensation, under both state and federal law. On the other hand, some who could do not register their trademarks.

There was a discussion, perhaps on the old MH, about proposed legislation to preclude military contractors from requiring licenses for use of their trademarks for toys but I'm not sure what became of that proposed law.

[bsmith13]

I'm not a lawyer, but a recent blurb in Air Force Times said that Congress had voted to make it impossible to trademark and DoD equipment or unit markings of the US Military, past, present or future.

[Hoverbug]

Originally Posted by hawkonevoodoo

I remember about a year or so ago on the old forum there was some talk about Boeing and some lawyers were going to make it necessary to buy a license from them if anyone wanted to produce replicas of their airplanes. The big thing mentioned was that they weren't Boeings airplanes once they were bought and paid for, they now belonged to the military and become public domain. I know there is at least one good lawyer on the forum and I was wondering if he could enlighten me about this. Was this just a rumor or did it go through or what has become of it? If this did go through I'm sure that will drive the cost of die-cast models up. This topic just seemed to fade away without a resolution. Does anyone know anything about this?

I'm not sure what the status of the legislation mentioned above is, but the issue wasn't so much that Boeing, etc. had the legal standing to make their case, but rather that the threat to the comparatively small legal resources of diecast manufacturers to go up against a Boeing made it impossible for them to defend themselves against even the threat of a lawsuit. The legislation was to make it clear that defense contractors had no standing whatsoever to make these claims, without having some legal test case to establish the precedent. The civil side is a whole different matter. Given the current climate, I don't see Boeing going after anybody not paying licensing fees for military aircraft now. 747s in airline colors is a different matter entirely.

[PH-LKK]

I'm trying to recall the outcome. There may be an old thread where I lay it out, but I seem to recall that the initial language was *not* included in the final bill that came out of conference. I also seem to recall that Congress merely requested that the DoD look into the matter, and provide a report to Congress on its views. So I'm not so sure that there is any new legal requirement that prevents defense contractors from charging a royalty for use of intellectual property associated with their DoD contract work.

Substantively, there are several things we are speaking of here:

First, there is the use of the company name, such as "Lockheed," "Boeing," "Douglas," etc. These names are the core intellectual property of each company (a trademark so famous and distinctive that it rises to the level of a "brand"), and nothing that Congress (or DoD) does is likely to tamper with the ability of defense contractors to control the use of their name. These names are "trademarks" in a poper sense: in the minds of consumers they are words that correspond directly with the source or sponsorship of the goods or services with which they are associated.

Second, there is the use of the DoD designation names, such as "P-51 Mustang," "SBD Dauntless," "B-24 Liberator," etc. These names are assigned by agencies of the United States Government, and are neither chosen nor controlled by the defense contractors themselves. These are properly considered the property of the U.S. Government, even if some contractors think that they have some ownership interest in play (due to design ownership issues discussed below). There is, in the minds of consumers, a pretty good correspondence between these names and the actual aircraft they represent, but control over the name and its use rests with the Government. The contractors have no ability to stop DoD from recycling names for different aircraft (recall the B-26), even though this leads to inevitable confusion.

Third, there is the use of design features characteristic of particular aircraft. Here the waters are very muddy, but we can say with relative certainty that we are no longer speaking of "trademark" per se. You see, trademark is concerned only with words, short phrases, slogans, and iconic images, whose sole purpose is to signify an item's source or sponsorship. To the extent that a word, phrase, slogan or iconic image does something else (to the extent that it is meaningful or useful in ways other than source-identification) it cannot be a trademark. It's that simple.

Well, almost. Design features, if they can be guarded as the property of a manufacturer at all, may only be protected by the law of patent or the law of trade secret. A utility patent is only available to protect those aspects of a design that are useful, new, and non-obvious given the state of the art at the time of invention. And a trade secret can only be understood as the property of the manufacturer if steps are taken that should reasonably protect the secrecy of the design. There is, however, another way that a design may be protected. And this is called a "design patent," by which many airframes, boat hulls, dolls, toys and other shapes are protected. They are available for a 14 year term, and it is possible that you can extend this for an additional 14 years, for a total of 28 (design patents are not really my forte, so I don't know for sure). Boeing, for example, owns design patents on all of its current airframes. And these patents give Boeing the right to control the use of the design in any scale.

For any design older that 28 years, it seems pretty clear to me that manufacturers and contractors are not able to control (or charge a royalty) for scale reproductions of their answers to DoD specifications. So, while they may hold out for use of their company name, they aren't necessarily going to be able to stop you from building your own P-51.

I believe that the recent legislation was intended to clarify that once a design is approved by DoD, it becomes the property of the United States government, and the contractor at that point is divested of all ownership interests arising therefrom. DoD may issue, or may have issued regulations that effectively do this, but the legislation did not pass.

[STARMAN 352ND]

I thought all of this was cleared up a few months ago and that the Diecast companies can start making any diecast plane without paying a fee for it.
JP