Ms. Dudnikov,

What follows are my comments on your recent blog posting, your statement followed by mine.

“Earth to the United States Marine Corps. When Congress passed legislation in 2007 authorizing federal and state agencies to seek trademark protection for their logos and other such stuff, the legislation did not make previously manufactured fabrics containing federal and state logos infringing.”

If you are referring to the passage of 10 U.S.C. 2260, it was 2004, not 2007. It was part of Public Law 108-375, enacted on October 28, 2004, for what it’s worth. If you discovered that 2007 date from our web site, we apologize, it is a mistake, and we’re trying to rectify it. The date really isn't important, though.

But the date of enactment aside, you might benefit from a clearer understanding of what the law did and did not do. You appear to be saying that 10 U.S.C. 2260 authorized “federal and state agencies to seek trademark protection for their logos and other such stuff.” Respectfully, that is not the case. The law enabled branches of Departments of Defense and Homeland Security (essentially, the armed forces, namely, Army, Navy, Air Force, Marines, Coast Guard) to license their trademarks in exchange for royalties, which could then be retained by said services, to be used for operation of the trademark programs, and for support of morale, welfare and recreation (MWR) activities for service personnel.

Federal (and state) agencies did not have to wait for the enactment of 10 U.S.C. 2260 to give them the right to “seek trademark protection.” Federal and state agencies, like any legal entity, are allowed to register trademarks, and also enforce common law trademarks. Government agencies have been registering and enforcing trademarks for decades.

You also seem to be under the impression that by enforcing trademarks that were in existence before the passage of 10 USC 2260, agencies are somehow wrongfully “bootstrapping” rights that arose after the passage of that act retroactively, so as to enforce marks against “previously manufactured fabrics containing federal and state logos.” I do not believe that when a fabric is created has any bearing if it contains another party’s trademarks. But I’m not sure it’s relevant, anyway. The trademarks existed before the enactment of 2260. Leaving aside the issue of whether or not the fabric was “licensed fabric,” if trademarks appear on fabric, or any medium, and are being used as trademarks, they either need to be licensed, or they’re considered to be infringing. The enactment of 10 U.S.C. 2260 has absolutely nothing to do with this.

“Any first-year law student can tell you that legislation making something a criminal or civil offense cannot be made to be retroactive.”

Given the above, it’s not clear to me how this statement is relevant. 2260 did not change anything relevant to enforcement, just licensing. This is not about trying to retroactively enforce trademark rights. Those rights existed when the marks were used in commerce by their owner. Again, 10 U.S.C. 2260 just gave the armed forces the right to license them for royalties, as explained above.

“Fabrics manufactured before 2007 containing military logos are not infringing upon trademarks granted after the date the fabrics were released.”

Once again, it’s not clear to me why 2007 is relevant. In any event, you once again seem to be operating under the erroneous belief that you have to have a trademark registration in order to enforce your trademark. You need not have a trademark registration to have trademark rights. An unregistered trademark is enforceable under the common law, pursuant to 15 U.S.C. 1125. As such, the date on which the trademark registration was granted has absolutely nothing to do with whether that mark may be enforced.

Further, you are likely not aware that the Eagle, Globe and Anchor, the official emblem of the U.S. Marine Corps, and the initials U.S.M.C., are protected by much more than trademark registrations and trademark law. The seal, emblem, and initials of the U.S. Marine Corps are specifically protected by statute, namely 10 U.S.C. 7881, which reads as follows:

Unauthorized use of Marine Corps insignia

(a) The seal, emblem, and initials of the United States Marine Corps shall be deemed to be insignia of the United States.

(b) No person may, except with the written permission of the Secretary of the Navy, use or imitate the seal, emblem, name, or initials of the United States Marine Corps in connection with any promotion, goods, services, or commercial activity in a manner reasonably tending to suggest that such use is approved, endorsed, or authorized by the Marine Corps or any other component of the Department of Defense. …

10 USC 7881, if you’re interested, was enacted in 1984.

“Does not the United States Marine Corp have a more productive way of using their legal counsel besides trolling the internet looking for non-infringing uses of perfectly legal fabrics? Is it now Semper Jerks? To serve and protect. And to harass those who are not infringing? Really? Does Philip Greene, present military trademark counsel for the United States Marine Corps, have a clue or is he just another bottom-feeder seeking to look good to his present employers? What ever happened to JAG handling the legal problems for the military?”

The USMC is simply trying to police its trademarks against unauthorized use. As you must be aware, trademark rights must be enforced, or their owner risks abandonment of those marks. Unauthorized users of USMC trademarks should either be stopped, or licensed. We’re working diligently to grant licenses to most Etsy vendors. Did you know that about one-third of the USMC’s licensees operate under royalty-free licenses? We’re not trying to crack down on the little guy, squeeze the hobbyist for every penny. We’re trying to get them licensed so they can continue to do what they were doing, and we’ll be able to say to both licensees and infringers alike, “those parties are operating under a license.”

Further, you appear to be operating under another erroneous assumption, that these fabrics are “perfectly legal.” Do you know this for a fact? As I have informed you, we have but one official licensee in the fabric realm, and much of what we’re seeing on Etsy and elsewhere comes from vendors who have no license from the USMC to put our trademarks on their fabric. As such, your favored assertion of “purchasers of licensed fabric may legally create and sell products without it being trademark infringement” is missing one key piece, when the fabric is not licensed.

Thank you for your time.

Philip J. Greene