DIGITIZE OR DIE: THE QUIXOTIC BATTLE FOR CAMOUFLAGE PATTERNS IN THE UNITED STATES MILITARY.

• Author: Farrelf, Thomas R.

ABSTRACT

Military uniforms serve a multitude of purposes in the twenty-first century. In the United States, they are a ubiquitous symbol of patriotism and military might. Individual military service branches use military uniforms to distinguish each from the other. In its quest for distinctiveness, the Marine Corps initiated a power struggle for unique uniform designs with its intellectual property protection of MARPAT, its proprietary digital camouflage uniform. Some twenty years and billions of taxpayer dollars later, most of the other service branches' hastily developed camouflage uniforms have been abandoned. As there is a dearth of legal scholarship addressing this issue, this Note provides the first foray into this murky territory.

In Part I, this Note delves into the history of military camouflage uniforms, discussing the key factors and decisions that led to the twenty-first century's camouflage arms race. Part II traces the history of uniform intellectual property protection in the United States. The Marine Corps's intellectual property protection of the MARPAT uniform is then discussed and analyzed in Part III. Finally, Part IV provides three potential options to restructure and reform the military's current intellectual property protection scheme. Each of these options has its own advantages and disadvantages. One of these options should be selected before such a uniform arms race occurs once again.

INTRODUCTION

Military uniforms have been employed in theaters of war for over 5,000 years. (1) Uniforms hold a special significance in the human race's collective psyche. (2) They also provide a variety of inter- and intraorganizational functions, from stripping an individual's familial and socioeconomic status to providing legitimacy to military action. (3) The removal of individual distinction assimilates military members into a group, reinforcing the subordination of individuality while emphasizing respect for the hierarchical chain of command. (4) Externally, this function of standardization is joined by an element of legitimatization: military members in uniform are seen as professionals, as opposed to a ragtag band of mercenaries. (5)

George Washington's blue overcoat has been described as the genesis of U.S. military uniforms. (6) This blue uniform stood in stark contrast to the scarlet jackets worn by the British Army "red coats" during the American Revolution. (7) Washington's garb spawned a multitude of U.S. military uniforms, the descendants of which are the military uniforms of the twenty first century. (8) Especially in the United States, these uniforms are often a potent symbol of military power and pride. (9)

The evolution of military uniforms in the twenty-first century has produced a curious (and unexpected) result: economic and political fratricide within the U.S. military over digital camouflage uniforms. (10) In the past twenty years, individual service branches within the U.S. military have wasted substantial time and resources on the development of separate camouflage utility uniforms, many of which were discontinued after a lifetime of less than ten years. (11) These follies drew the ire of those within and outside of the federal government and shifted focus away from combat readiness. (12) Part I of this Note will first trace the development of digital camouflage uniforms in the American military. (13) Part II will dive into the statutory law and caselaw governing the intellectual property associated with uniforms and military equipment while Part III discusses the Marine Corps's strategy, in particular. (14) Finally, Part IV discusses proposals to reform the schism in American military uniform development and provide a framework to reform this broken system. (15) Because of the time and resources that have been wasted in the development of defunct camouflage uniforms, it is critical that this process be reformed before disaster strikes again.

1. THE UNIFORM CONUNDRUM

   The armed forces of the United States are presently organized into six branches--the U.S. Army, Navy, Marine Corps, Coast Guard, Air Force, and Space Force, in order of establishment. (16) Each service branch performs a specific function in the modern American military, from ground forces (Army); forces on, above, and below the ocean (Navy); amphibious operations and power projection from sea to land (Marine Corps); coastal forces (Coast Guard); air and space capabilities (Air Force); to satellites and space command-and-control (Space Force). (17) The National Defense Authorization Act (NDAA) provides funding for the Department of Defense (DoD) as a whole, (18) and all six branches compete for funding from Congress. (19)

   Since 1775, the armed forces of the United States have maintained separate branch identities to foster esprit de corps, defined as a "common spirit existing in the members of a group and inspiring enthusiasm, devotion, and strong regard for the honor of the group." (20) Thus, each individual service branch has its own insignia, history, and culture. (21) Each branch has also maintained its own service and dress uniforms to distinguish its servicemembers and equipment. (22) This policy of specialization did not extend to camouflage utility uniforms in the latter half of the twentieth century, as all service branches utilized the same camouflage uniforms. (23) That changed in 2002. (24)

   In 1997, the Canadian Defense Force became the first military service worldwide to adopt digital camouflage uniforms. (25) Compared to the ubiquitous "tricolor" woodland and desert uniforms employed in the 1980s and 1990s, (26) digital camouflage uniforms have a computer-designed camouflage pattern of individual pixels. (27) Testing of these uniforms showed that the digital patterns were highly effective in concealment compared to traditional camouflage uniforms. (28) The Canadian Disruptive Pattern (CADPAT) uniform was designed with green and brown tones ideal for camouflage in forest environments. (29) CADPAT soon became the archetype for camouflage uniforms in the United States. (30)

   In 2002, The Marine Corps introduced a proprietary camouflage uniform based on the Canadian design: Marine Pattern camouflage or "MARPAT." (31) The Marine Corps adopted two separate MARPAT varieties: a woodland version for use in forested environments and a desert pattern for use in arid climates. (32) Unlike U.S. military combat utility uniforms of the past, which were shared among service branches, the Marine Corps refused to allow any other service branch to use MARPAT. (33) In fact, the Marine Corps both trademarked the pattern in MARPAT and obtained a patent for the manufacturing process of the uniform. (34) This intellectual property protection served various purposes. First, the Marine Corps believed such intellectual property protection would prevent other military branches from using the Marine Corps's design. (35) Additionally, this protection allowed the Marine Corps to license its uniform design as a means to obtain revenue via sales of licensed merchandise bearing the Marine Corps's insignia. (36) Compared to its sister branch, the Navy, the Marine Corps's budget is considerably smaller, making raising revenue a prime consideration. (37) Additionally, the Marine Corps wanted to distinguish itself from its counterparts for political and recruiting reasons, including maintaining the Marine Corps's image. (38)

   With other service branches seeking to cash in on the futuristic and distinctive appeal of digital camouflage uniforms, the Army, Navy, and Air Force each pursued their own digital patterns. (39) The Army developed a version called the Universal Camouflage Pattern (UCP) that attempted to provide a single uniform for both woodland and desert environments. (40) While the uniform had the best average scores across measured criteria, it did not perform as well as other uniforms in individual environments; nevertheless, it was adopted by the Army based on the strength of its average scores. (41) Public criticism of the uniform focused on the ugliness of its pattern. (42) The design proved ineffective in both Iraq and Afghanistan and was phased out in the 2010s. (43) Its replacement was the Operational Camouflage Pattern (OCP). While OCP is known colloquially as "MultiCam," it is actually a separate pattern called Scorpion-W2. (44) Ironically, it was one of the contenders from initial uniform testing that the Army rejected in favor of UCP. (45)

   The Navy's digital camouflage uniform, called the Naval Working Uniform (NWU), originally had three separate varieties--a blue version for shipboard use (Type I), a desert variant (Type II), and a green woodland variant (Type III). (46) The blue version was designed to hide paint and oil stains from shipboard use, thus extending the life of the uniform. (47) Like the Army's UCP uniforms, it was universally criticized by sailors and by commentators for a variety of reasons, from being uncomfortable, to not being fire resistant (a major concern onboard ships), and because it would camouflage sailors who fell overboard, making it harder to see them when conducting rescue operations. (48) The Type I NWU was phased out of service in the mid-2010s, with Navy service members switching to the Type III woodland variant. (49)

   The Air Force's version was the Airman Battle Uniform (ABU). (50) It's green and blue "tiger stripe" pattern was specifically designed to be distinctive, a purpose antithetical to tactical camouflage uniforms in the first place. (51) It was also poorly received by airmen and was replaced by the Army's Scorpion-W2 pattern. (52) Thus, less than two decades after the inception of MARPAT, the Army, Navy, and Air Force fielded ten different branch-specific digital camouflage uniforms, many of which did not survive longer than a decade. (53) The military needlessly spent billions of dollars on the development of these defunct uniforms. (54)

   Congress has been aware...