"S.O.S.": SAVE OUR SERVICE MARKS
MAJOR JEFFREY T. BRELOSKI*
Soldiers join the Army to become part of a values and tradition based culture. While the Army Values help deepen existing personal values, such as family bonds, work ethic, and integrity, it is tradition that ties Soldiers and their families into military
culture. Unit history is an important factor for that bonding, since Soldiers want to belong to organizations with distinguished service records. Unit names, such as the Big Red One, Old Ironsides, All Americans, and Spearhead carry an extensive history. To sustain tradition, leaders must teach Soldiers the history that surrounds unit crests, military greetings, awards, decorations, and badges. Through leading by example, teaching, and upholding traditions, leaders ensure that the Army's culture becomes an integral part of every member of the Army team and adds purpose to their lives.1
Since September 11th, 2001, domestic support for the U.S. Army has been overwhelming.2 This public support ranges from messages to
troops from private citizens3 to free goods and services from corporations.4 Visible signs of support are more pervasive in cities near U.S. Army installations. In these cities, you cannot travel five minutes without seeing a yellow ribbon magnet on a vehicle with the phrase "support our troops." You cannot walk through a gym without seeing a local unit's t-shirt with some motivational motto.5 Finally, you cannot pass through an installation without seeing a hat with some kind of military symbol.6 This significant display of public support contributes to the morale of Soldiers everywhere. However, the public's support of our Soldiers may actually harm the U.S. Army by endangering its marks.7
United States Army phrases, unit patches, mottos, and symbols displayed on merchandise are marks that represent U.S. Army units individually and the U.S. Army as a whole.8 Consequently, the U.S. Army has an interest in protecting its marks.9 When used to identify the origin and goodwill of the U.S. Army, these phrases, unit patches, mottos, and symbols function as trademarks.10 Trademark law protects the connection between a particular mark and its origin.11 Nevertheless,
that connection can be broken if the originator of the mark loses control of its mark, resulting in the potential abandonment of trademark rights.12
The U.S. Army has been developing marks to specifically identify and distinguish different units, specialties, and installations within the U.S. Army for the past 200 years.13 One example is the U.S. Special Operations Command (USSOCOM); their mission is to "[p]rovide fully capable Special Operations Forces to defend the United States and its interests."14 The Shoulder Sleeve Insignia (SSI) distinguishing their unit is the following:
Although traditional trademark law is but one method of protecting the U.S. Army's marks, the U.S. Army may inadvertently lose claim to exclusive ownership and control of its marks with its increased commercial popularity under traditional trademark law. Private companies targeting the military population often attempt to capitalize on the U.S. Army marks. SOCOM GEAR16 is an example of such a company; it sells tactical gear and weapons online. Their logo is the following:
The striking similarities between both graphics may mislead and deceive the public into believing the U.S. Army endorses SOCOM GEAR.18 As The U.S. Army could even lose its rights to the USSOCOM mark due to the demanding requirements of trademark protection, requirements that the U.S. Army's marks are not always able to meet.19 If the U.S. Army loses exclusive rights in its marks to a company, the loss could result in that company charging the U.S. Army for use of the marks in commercials,20 preventing Soldiers from using the term "Hooah!,"21 or altering the appearance of current U.S. Army marks. To prevent these problems, Congress should pass a special statute that supplements traditional trademark law ensuring the U.S. Army maintains exclusive ownership rights in its marks and thereby preserves its significantly rich military history.
Part II of this article explains the fundamental principles of trademark law. With a rudimentary understanding of these principles, Part III next introduces how trademarks function in the commercial world. Part IV explains how phrases and symbols uniquely function in the military, especially Army settings, and notes how, in recognizing these important functions, the U.S. Army's senior leadership has called for additional protections. As an increasing number of Army phrases and symbols have been licensed, the leadership has increasingly scrutinized
the U.S. Army's trademark program,22 uncovering many of the Lanham Act's deficiencies in protecting U.S. Army marks.23
Part V builds upon the deficiencies identified in Part IV and provides specific scenarios where the U.S. Army could lose exclusive rights in its phrases and symbols, demonstrating the shortcomings of traditional trademark law. These shortcomings of the Lanham Act reveal the need for complementary protection to adequately preserve U.S. Army phrases and symbols. Part VI supports the adoption of a special statute, similar to statutes already protecting both the U.S. Marine Corps and U.S. Coast Guard,24 that Congress should pass augmenting phrase and symbol25 protection under current trademark law. With these necessary interventions, the U.S. Army can finally enjoy complete protection of its marks.
Fundamental Principles of Trademark Law
Enacted in 1946, the Lanham Act has the objective of protecting "legitimate business and the consumers of the country" and does this by providing a set of federal legal rights and remedies for trademark owners.26 Before identifying the problems with the Lanham Act, 27 this
part begins with a basic understanding of the background and principles of trademark law, including the earliest goals of trademark law and the reasons why commercial companies, consumers, and Congress had an interest in protecting the origin of any product. Further, this part examines the development of protective procedures that culminated in the Lanham Act.
A. Objectives of Trademark Protection
The goal of trademark law is to link a mark to the origin of a particular product.28 Trademark law protects this link by guarding an organization's29 investment in goodwill30 and a consumer's investment in an authentic product.31 Governmental organizations, including military agencies, are eligible for trademark protection even if their business is not predicated on commercial ventures. For ease of reference, this article uses the term "company" broadly to include military and nonprofit agencies. United States trademark law stems from the Lanham Act,32
which seeks to shield companies from unfair competition.33 The Lanham Act preserves a company's investment in developing a mark and prevents third parties from using the mark to confuse consumers.34
Decision makers at companies understand the importance of safeguarding their companies' marks and consequently spend large
amounts of money to protect them.35 Still, companies' efforts do not always deter infringers, who often ignore trademark laws, and often have to pay millions in damages when pursued in courts.36
Congress designed the Lanham Act to protect companies in their development of marks and to prevent consumer confusion as to the origin of marks.37
The intent of this [Lanham] Act is to regulate commerce38 within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce; to protect registered marks used in such commerce from interference by State, or territorial legislation; to protect persons engaged in such commerce against unfair competition; to prevent fraud and deception in such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks; and to provide rights and remedies stipulated by treaties and conventions respecting trademarks, trade names, and unfair
competition entered into between the United States and foreign nations.39
Despite over sixty years since its enactment, these objectives have remained virtually unchanged.
B. Basis of the Lanham Act
Lawmakers initially experienced difficulty in passing the Lanham Act as it treated trademarks like copyrights40 and patents.41 Similar treatment seemed logical to lawmakers as copyrights, patents, and trademarks form the three major intellectual property rights.42 Like the Patent Act43 and the Copyright Act,44 early trademark law found its constitutional roots in the Patents and Copyrights clause.45 However, the Trade-mark Cases in 1879 invalidated this constitutional basis for the 1870 Trademark Act.46 The Supreme Court held that because trademarks did not relate to an invention or a creative work, the Patents and Copyrights clause of the Constitution did not apply.47 Instead, the Court held that trademarks
identify a particular class or quality of goods as the manufacture, produce, or property of the person who puts them in the general market for sale; that the sale of the article so distinguished is commerce; that the trademark is, therefore, a useful and valuable aid or instrument of commerce, and its regulation by virtue of the clause belongs to Congress, and that the act in question is a lawful exercise of this power.48
The Supreme Court, in dicta, commented that the Commerce Clause49
would not authorize the 1870 and 1876 Trademark Acts.50 Later, in 1946, however, Congress limited the Lanham Act to "in the use of commerce" and thus secured a constitutional basis for...