The Electronic Frontier Foundation has taken up the case of 3D modellers, fighting for their right to produce and sell models of vehicles.
Last month, Mark blogged about the ongoing wars between Lockheed Martin and 3D modeller John Macneill over the right to produce digital 3D models of the WWII B-24 bomber. Lockheed Martin claims that this is a trademark infringement.
It's not.
Who owns the B-24, the bomber that helped win World War II? U.S. taxpayers paid for it, Consolidated Aircraft built it, U.S. military pilots flew it, but Lockheed Martin says it owns the bomber–or at least it owns the name…
It is perplexing that this mark was granted in the first place, given that the term "B-24" is nothing more than a U.S. military model number used to describe the plane itself (descriptiveness is a traditional basis for rejection; that's why you can't register a trademark on the use of the term "cyberlaw" in connection with the practice of technology law). MacNeill's situation is a perfect example of why we need that rule. If Lockheed had its way, no one could create 3-D images (or anything else that could be construed as a "model") of famous military aircraft–from the B-24 to the F-117 Nighthawk, also known as the Stealth fighter.
But Lockheed should not have its way, because MacNeill's images are protected by the nominative fair use doctrine. Nominative fair use means, in a nutshell, that it is OK to use a mark to accurately identify a product if using the trademark is necessary to identify the products, services, or company you're talking about, and you don't use the mark to suggest the company endorses you.
(Thanks, John!)
See also: WWII Bomber: "Trademark Infringement"
