[Wikipedia-l] Wikipedia, Copyright, Trademarks and British Military Crests

[David Newton]

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 at 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