After his sharp 2-part post on the TKDL (see here and here), Balaji Subramanian brings us his next entry to our SpicyIP Fellowship applicant series. In this post, he brings up some interesting public policy concerns with the grant of trademarks to military hardware, to classes outside of their core areas of working. Read on for more! [Readers interested in finding out more details about our SpicyIP Fellowship applicant series can click here.]
Military Hardware and Trademarks
By: Balaji Subramanian
Over the last week, news outlets have reported on the Kalashnikov Concern applying for a trademark on the word AK-47, under Class 28 of the 1957 Nice Agreement. Class 28 includes “games and playthings”, such as air pistols, video games, electronic targets, and similar equipment which the consumer might be misled into associating with the rifle or its manufacturer, and its legacy as a proven product in the public’s imagination.
This raises an interesting question: how desirable is it, as a matter of policy, for manufacturers of military hardware to obtain trademark protection for their products? While it’s perfectly legitimate for organisations such as Kalashnikov to defend themselves from counterfeiting, allowing them to obtain trademarks in markets unrelated to their core competence appears contrary to the public interest, for several reasons.
Designations such as AK-47 are often supplied by customers of the products, rather than the manufacturer, and usually serve as trade names. Thus, while it’s relatively easy to describe a cell phone or a computer program in works of art without having to use trademarked expressions, the very nature of military hardware makes them unwieldy to describe without having to resort to their designations. Thus, I could design a video game that contains descriptions of a sleek smartphone with a high-resolution screen and camera, a fingerprint scanner and face detection, and reasonably expect the image of the latest iPhone to impose itself on my audience. However, it would be incredibly difficult to achieve the same level of audience engagement while describing an AK-47 as a “selective-fire gas-operated assault rifle”, a description that would be equally appropriate for the M16, the INSAS, or any such weapon. This was a prominent concern raised when Lockheed Martin attempted to assert its trademark over its WWII-era bomber, the B-24 Liberator. The argument against such an assertion was that the designation B-24 and the nickname Liberator were both provided by the US military, rather than Consolidated Aircraft (which was bought out by Lockheed Martin). Further, the military designation, in such cases, is often the only means by which the product can be described or referred to. Thus, there exists no viable phraseology to describe the AK-47 but the term ‘AK-47’. This, in a nutshell, was the EFF’s argument against the B-24 assertion. They seems to have succeeded, since Lockheed Martin withdrew its claim subsequently.
It must be acknowledged that there exists no foreseeable social welfare gain in allowing military contractors to trademark their products, especially under designations supplied by their customers, which are predominantly governments. The losses, however, are significant. Entire industries depend on being able to represent military hardware under government-supplied designations. The imposition of royalties on such representations would serve to increase costs prohibitively on products such as scale models.
Further, video games serve as an important medium through which wars can be brought home to the people of a country. In such a situation, granting trademark protection to weapons systems opens up an avenue for military contractors (who have an interest in expanding armies and increasing military spending) to silence the most vivid descriptions of battle available to the common citizen through the use of prohibitive licensing policies for their trademarks. The relationship between game manufacturers and military contractors is already tenuous – EA, for example, refused to license gun trademarks from 2013 in a rare case. EA was big enough to withstand trademark bullying by military contractors – smaller game studios may be swayed into portraying weapons in a certain manner under threat of license denials and subsequent litigation. The fact that military-themed video games increasingly obtain licenses from manufacturers can possibly be related to the frequent complaint of one-dimensionality – that the time-worn “America v. Terrorists” plot line simply refuses to go away. Put simply, the contractor has an interest in increased defence budgets, which is in turn dependent on politicians generating sufficient political capital through favourable public opinion. Thus, it’s reasonable to suggest that Boeing isn’t going to license a video game that has the protagonist play a North Korean pilot tasked with shooting down their latest aircraft – it’s much better PR if the game features an American protagonist (flying their jet, obviously) shooting down a nameless, faceless, dehumanized enemy affiliated to a vague “terrorist” outfit.
As India progressively develops military hardware for export, it is possible that Indian organisations (predominantly state-run, such as the DRDO, HAL and the OFB) increasingly resort to trademarking their products’ designations. Simultaneously, Indian developers are beginning to target an international audience. The consequence of these developments is that it is entirely possible for the debate to enter Indian shores. In such a situation, it would do well to examine such trademarks against S. 9 of the Trade Marks Act, 1999, which states that trade marks “which consist exclusively of marks or indications which may serve in trade to designate the kind, quality, quantity, intended purpose, values, geographical origin or the time of production of the goods or rendering of the service or other characteristics of the goods or service” are not to be registered.
Thus, it can be argued that designations such as AK-47 or Su-30MKI are marks that designate the quality, intended purpose, values and time of production of these systems, and therefore must be precluded from registration as trademarks. It must be noted, however, that such a claim is distinct and separate from the logically subsequent argument of nominative fair use, as made out in the Liberator dispute. While nominative fair use presupposes the existence of a trademark, I seek to argue that there exists little backing, in policy as well as in law, for the grant of a trademark in the first place. Therefore, having juxtaposed the provisions of S. 9 with the AK-47 situation, it appears that Indian products should not be affected by the possible chilling effect of military trademarks. However, most Indian manufacturers and game development studios are likely to be small enterprises lacking in legal expertise, and therefore less likely to pursue such argumentation against trademark claims (even dubious ones) from large corporations such as military contractors in India and abroad.