I have some concerns about the interaction of trademark and copyright law when certain military crests are reproduced on the Wikipedia.
From what I understand the GFDL is intended to be a license dealing
with copyright. It says concerning this matter:
"You may copy and distribute the Document in any medium, either commercially or noncommercially, provided that this License, the copyright notices, and the license notice saying this License applies to the Document are reproduced in all copies, and that you add no other conditions whatsoever to those of this License. You may not use technical measures to obstruct or control the reading or further copying of the copies you make or distribute. However, you may accept compensation in exchange for copies. If you distribute a large enough number of copies you must also follow the conditions in section 3.
You may also lend copies, under the same conditions stated above, and you may publicly display copies."
However, not all of the information that we deal with is covered simply by copyright law. A lot of it is covered by trademark law. I understand that US trademark law has a defence similar to fair use under copyright law. From the British point of view the Trademarks Act 1994 states that for registered trademarks:
"10. - (1) A person infringes a registered trade mark if he uses in the course of trade a sign which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered.
(2) A person infringes a registered trade mark if he uses in the course of trade a sign where because -
(a) the sign is identical with the trade mark and is used in relation to goods or services similar to those for which the trade mark is registered, or
(b) the sign is similar to the trade mark and is used in relation to goods or services identical with or similar to those for which the trade mark is registered,
there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the trade mark.
(3) A person infringes a registered trade mark if he uses in the course of trade in relation to goods or services a sign which -
(a) is identical with or similar to the trade mark, and
(b) is used in relation to goods or services which are not similar to those for which the trade mark is registered,
where the trade mark has a reputation in the United Kingdom and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark.
(4) For the purposes of this section a person uses a sign if, in particular, he-
(a) affixes it to goods or the packaging thereof;
(b) offers or exposes goods for sale, puts them on the market or stocks them for those purposes under the sign, or offers or supplies services under the sign;
(c) imports or exports goods under the sign; or
(d) uses the sign on business papers or in advertising.
(5) A person who applies a registered trade mark to material intended to be used for labelling or packaging goods, as a business paper, or for advertising goods or services, shall be treated as a party to any use of the material which infringes the re gistered trade mark if when he applied the mark he knew or had reason to believe that the application of the mark was not duly authorised by the proprietor or a licensee.
(6) Nothing in the preceding provisions of this section shall be construed as preventing the use of a registered trade mark by any person for the purpose of identifying goods or services as those of the proprietor or a licensee.
But any such use otherwise than in accordance with honest practices in industrial or commercial matters shall be treated as infringing the registered trade mark if the use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark."
The reason for my interest in trademarks over this matter is specifically related to military units. There are a number of RAF squadron and command logos that have been used on pages about those units. Looking at the license terms of the site they come from, it appears that they might be a copyvio. They come from the RAF Marham website, which uses the Crown copyright notice about being freely reproduced subject to being used accurately, not in a derogatory manner and with an acknowledgement of source. The rub comes in the terms and conditions of use for the actual crests themselves. The terms state:
"This is a gallery of Squadron, Station and Section crests and RAF badges available for personal use only, to anyone interested in crests and badges. If you publish them on your website then please place a link to this website, or include a reference to this website in your literature."
I wrote an email to them pointing out the apparent dichotomy between saying personal use only and talking about being published on websites and asking them to clarify the policy. The reply was not particularly helpful and said:
"The Gallery of Crests was initially created due to the large amount of requests that we received for ex-Servicement looking for their Squadron or Station Crests. This Gallery is primarily intended for their use, not for use for financial gain. I believe the information provided (below) will answer your questions."
The information that is referred to in that paragraph is links to the RAF Marham copyright notice, the OPSI copyright guidance pages and the MOD trademark use pages. Given what they have said I get the impression that the usage restrictions they are referring to are from trademark law. The MOD policy on the reuse of armed forces insignia for reference purposes is as follows:
"Trade Mark law protects the identity of goods and services, allowing distinctions to be made between different undertakings. Trade marks do not necessarily need to be registered with the Patent Office in order to be protected, although many MoD trade marks are. In the context of the MoD, "trade marks" include all badges, crests, heraldry, logos and other insignia used by the Armed Services and other MoD sections, together with their names, mottoes and the names of any services they provide.
These signs embody the reputation of the units they represent, and as such their use is very tightly controlled under trade mark law. Unauthorised reproduction is treated as a serious matter, as it can amount to the appropriation of an organisation's reputation.
If you wish to reproduce insignia purely for as an illustration for reference purposes, please contact the Directorate directly, at the address below."
The address of the Directorate refered to is:
Directorate of Intellectual Property Rights, MOD Abbey Wood #2218, Bristol, BS34 8JH Tel: 0117 9132862. Fax: 0117 9132929. E-mail ipr-cu@dpa.mod.uk
It seems to me that it would be a good idea to get in touch with them over this matter and find out what their policy with respect to the Wikipedia is. It is nice to have good quality illustrations of the crests from the RAF Marham website, but even if they do turn out to be copyvios, we need to sort out the issues with respect to trademarks.
David Newton
David Newton wrote:
<snip: long detailed commentary>
It seems to me that it would be a good idea to get in touch with them over this matter and find out what their policy with respect to the Wikipedia is. It is nice to have good quality illustrations of the crests from the RAF Marham website, but even if they do turn out to be copyvios, we need to sort out the issues with respect to trademarks.
It seems to me that what something is used for is far more important in trademark law than in copyright law. Whatever might be said about copyright law in terms of a particular reproduction it can still be used without violating trademark law. In your material you quoted:
But any such use otherwise than in accordance with honest practices in industrial or commercial matters shall be treated as infringing the registered trade mark if the use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark.
Unless we are using the material in direct competition with these units, or are creating confusion in the marketplace, or are pretending to be them, or are treating them unfairly in a manner that brings them into disrepute we come nowhere near to violating trademarks. Where and how do you perceive that we could be violating trademarks?
Copyright is a completely different manner.
Ec
On 6/12/05, Ray Saintonge saintonge@telus.net wrote:
David Newton wrote:
<snip: long detailed commentary>
It seems to me that it would be a good idea to get in touch with them over this matter and find out what their policy with respect to the Wikipedia is. It is nice to have good quality illustrations of the crests from the RAF Marham website, but even if they do turn out to be copyvios, we need to sort out the issues with respect to trademarks.
It seems to me that what something is used for is far more important in trademark law than in copyright law. Whatever might be said about copyright law in terms of a particular reproduction it can still be used without violating trademark law. In your material you quoted:
But any such use otherwise than in accordance with honest practices in industrial or commercial matters shall be treated as infringing the registered trade mark if the use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark.
Unless we are using the material in direct competition with these units, or are creating confusion in the marketplace, or are pretending to be them, or are treating them unfairly in a manner that brings them into disrepute we come nowhere near to violating trademarks. Where and how do you perceive that we could be violating trademarks?
Copyright is a completely different manner.
Ec
The thing that worries me is the intertwining of copyright and trademark law in this case. It is not clear whether the additional restrictions on the logos, as compared with the rest, on the RAF Marham website are due to copyright law or to trademark law. The reply to my email to the RAF Marham webmaster in this case suggests to me that we are dealing with trademark law.
The reason I am concerned over trademarks is not the usage of the logos as they currently are: when they are used as infoboxes or otherwise as illustrations in serious articles about the units and formations concerned. What concerns me is that a vandal might link the image into an entirely different and dodgy article, and that it might be unnoticed. That would be skating perilously close to a violation of trademark law. It also applies to many other, equally or even more prominent, registered trademarks. What I would ideally like to be the case is to get a much more exact statement of what can be done with trademarks than is currently in place in the Wikipedia. Just as we have copyright tags for images, a couple of which do mention trademark law, I think it would probably be a good idea to have trademark tags, setting out the restrictions on what may be done with the image according to that law. We would obviously need two types of tag; registered and unregistered trademarks, and naturally this would have to be based on US law since that is where the servers are.
Another matter that I have searched the internet for is how trademarks interact with the GFDL. That explicitly says that images under that licence cannot be distributed in a more restricted way than with the licence. That would seem to mean that images of trademarks cannot be licensed under the GFDL, since trademark law places restrictions on their usage beyond those of the GFDL. The images in question from RAF Marham are not under the GFDL, but again it is something that needs to be considered.
I am not saying that the Wikipedia is breaking trademark law. The disclaimer does a pretty good job of mitigating that danger. What I am saying is that trademark law is a potentially dangerous minefield for the Wikipedia. I understand copyright law a good deal better than the average person since I have had to make a study of it in running a website, but I am not particularly familiar with trademark law beyond its most basic concepts (ie that a trademark must be defended, that it covers only certain fields unless it is very, very well known etc). I think something that is particularly dangerous, and under-explored, is the interaction of trademark law with virial licences like the GFDL, since they are worded in such a way that they could potentiall come into that area.
I hope I am being paranoid about trademarks on this occasion.
David Newton
wikipedia-l@lists.wikimedia.org