Using Trademarks

Let's just say it first and move on.

 DO NOT USE TRADEMARKS AND BRANDING!

This is only my suggestion but Trademarks are registered and protected under law and of all the categories of IP law they are the type most likely to see legal action being taken. My best advice is do not use them.  Don't use the product name or the logos given to them by the company, but have fun and call them something else.  Or stick to the military designations. It really could to save you a load of trouble down the line.

This you should know:
  • Trademarks are not just logos. But brand names and can be words too.
  • Use of these logos and names in anyway that the owner sees as unsuitable can be cause for legal action. eg Implying any unauthorised connection to the owner or product line. or in some derogatory way or use that undermines their product or brand.
  • Trademarks need to be actively protected to be enforcable under Law. This means some companies will and do go after non-commercial or low-value infringments to provide precedent and evidence that they are actively protecting their brand.  In fact its actually cheaper for them to take action against a smaller case they can win easily so when it comes to a more serious case these smaller cases act as proof of how seriously they take thier brand.
  • Unlicensed use of Trademarks for Profit is illegal under not just civil but criminal law in some countries.
  • Trademarks are split into 45 categories of use. These allow for the name to be used across different types of product.  eg: Softdrinks, Clothing, Aircraft, Washing machines etc
  • Trademarks can be licensed to 3rd Parties. eg Coca Cola T-Shirts and merchandise.
  • Many Governments and Militaries Trademark their Logos and insignia.
  • Trademarks can be registered for a set period and can expire allowing them to be used.
  • 'Fair use' is sometimes applicable for casual use, eg a logo on an ingame hording etc. As long as their is no use of the logo to promote or imply a connection with your product this may be regarded as acceptable.  But that is upto the IP owner to determine.  A Real world example is Coke machines in TV shows, the producers don't pay fee to use them.  Its considered part of the environment and there is no attempt to profit from the use of the Coke logo, so falls under 'fair use' (there is a proper legal term for this but it escapes me atm)
This topic is actually very simple to explain in principle. But its application in the real world gets quite complicated. It does seem insane that you can legally claim a word as your Intellectual Property. But its not that cut and dried. There are rules about what you can claim and in what context that are obscenely complicated.
  • You can only claim a word or name in connection to a Product or Service in one or more of the 45 predefined categories. Eg British Aerospace registered the word HARRIER in 2001 under categories 9,12,16,25,28,37.  It later expired in 2010 and was not renewed as BAE Systems not longer traded using that brand.
  • You can then choose to license those rights to 3rd parties producing revenue, eg a Computer game company, Clothing manufacturer etc.
  • But you get away with using the HARRIER name in other non-competing applications and products because it no way impacts upon their area of business. eg: There are lots of Harrier simulation games but note none use the Official logo or claim any connection with British Aerospace. If you were to look into the small print in the manuals you will see a statement saying that "there is no affiliation with British Aerospace implied or otherwise in the use of the Harrier name." or similar.
  • If a trademark has expired it can generally be used without permission.  But I would do a check to make sure it hasn't been re-registered under a different owner first.
  • It is possible to have a Trademark registered in one Country but not another. 
I personally avoid brand names and Logos on my models and addons.  That being said, unless the owner sees your use of their Trademark as a threat or derogatory they are unlikely sue. its an expensive business.  You may get a cease and desist letter and a request to either remove the branding or clarify your usage.

 If in doubt you can check on your region's Trademark Register:
USING MILITARY DESIGNATIONS.
Obviously something relevant to the Arma community.  We use them all the time. Again, this is a complicated area and its not black or white.

In some countries Military Designations are owned by the Government and are not subject to Trademarks. In others, they can be "adopted" by the Manufacturer but no claim against the Government can be made for the use of the trademark.

COLT M4 - SETTING A PRECEDENT
This has become a landmark case: Colt lost its case over the exclusive right to use the M4 designation.  There is a piece of US law called the Lanham Act that protects nomenclature given to US DoD/US Army equipment when it becomes linked to a producer.  But it also demonstrates how these designations can become what is know as a legally generic term. Making them not subject to Trademark enforcement.

Colt Trademark Issues: https://en.wikipedia.org/wiki/M4_carbine#Trademark_issues

This does not mean that after that ruling every military designation is not subject to Trademark enforcement. In the Colt case the judgement swung around the issue of shape and function. I.e. that there are many other AR rifles out there that appear similar and are referred to by the name 'M4' yet which plainly are not M4s much like not every vacuum cleaner is a Hoover. But people refer to them as Hoovers. What this did do is highlight how the public perceives and uses names and designations leading to the US government to issues guidance regarding designations. As well as shaking some other legal Trademark infringement claims that came after.

This doesn't mean that any military trademark is up for grabs. It just means that now there is a possible defence that using them in a way that does not impact on their owners brand identity may be considered acceptable under US Law.

This is not implied permission to use them. it just means (without all the legal caveats and word play) you are less likely to have action taken against you if you do use them in the context of a free game mod.

INTERESTING BIT: It is also worth noting that many national Militaries actually trademark their own branding and logos too:
The UK MoD is very particular about the use of its Logos but the Land Service designations sure a L119A1, L85A3 etc are not subject to trademarks. Nor are US DoD M numbers (typically unless permitted byt the US Government) and their non-commercial public use could be said to fall under "Fair use" but that's just my opinion. You would need to check with your national government to get a definitive answer.

HOWEVER, there is an interesting case precedent from 2019 from within the EU
Source: https://leidenlawblog.nl/articles/trademarks-in-works-of-art-are-allowed














Now this has a direct bearing on our non-commercial Arma addons use case. At least under EU law.  How this ruling fares under US law I would not know.  From my understanding this would lend weight to any defence claiming of Artistic Impression when creating addons.

TRADEMARK INFRINGEMENT IN VIDEO GAMES
There are plenty of cases of Trademark infringement case for video games on record these are just a few of the more notable ones.  But google for yourself and you'll find dozens if not more:
Just because a lot of these are against big companies do not assume IP owners will ignore you if you are a little fish in a big pond.  Many people in the ArmA have received Cease and Desist notices.  Most notably the Start Trek, Stargate and Star Wars mods of the past.

A number of teams have received them and successfully dodged a bullet by coming to an agreement with the IP holders.  Either by clarifying their intent or by signing a non-commercial/non-complete contract barring them from any exploitation of the affected brands. Others weren't so lucky and were forced to close their doors.

If you are going to use someone's Trademarks, tread very carefully.

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