Unofficial 9/11 Memorials Come Under Fire from FDNY Trademark Lawyers

A project using salvaged FDNY firetrucks as "mobile museums and memorials" dedicated to the memory of September 11, 2001, and the heroic firefighters who died that fateful day, have come under fire from lawyers representing the New York City Fire Department.

Source:  Remembrance Rescue Project Website

In July 2011, a group of firefighters purchased former Rescue Truck Number 3 from the City of New York, when it was going to be scrapped.  The firefighters were able to use parts from Rescue Trucks Numbers 4 and 5 to restore them to working condition.  The trucks became part of the "Remembrance Rescue Project."

The Project's website claims to be an educational, not for profit effort focused on educating and memorializing September 11. The Project's application for tax-exempt status from the IRS under Section 501(c)(3) is currently pending.  

The domain name www.Remembrance.co is currently registered to Christopher Gantz of "Strike the Box Enterprises" in Schaumberg, Illinois, whose e-mail address is apparently cgantz@firezonefun.com.

FireZoneFun.com offers children's amusement-park type "rent a fire truck" services for birthday and block parties.

The so-called "mobile memorials" that travel across America are not an official FDNY-sanctioned operation, and the trucks are operated by firefighters across the country who purportedly volunteer their time.

Upcoming locations where the trucks will be displayed include golf tournaments, airshows, NASCAR races and car shows.

However, FDNY lawyers and others have raised questions about the ongoing usage of the official New York City Fire Department logos on the Project's refurbished trucks, after multiple cease and desist letters were sent to the Project's management.

Source:  Remembrance Rescue Project Website

There have also been questions about the lack of involvement by active or retired FDNY members with the Project, but the Project claims that it has repeatedly tried to obtain assistance from the FDNY, as well as from family members of the fallen firefighters, but hasn't received any support.

As for the logos, the Project claims that it is currently redesigning them to steer clear of the NYFD's registered trademarks.

US Marine Corps Logo Stripped After Trademark Issue Surfaces

John Brunner, who proudly served in the U.S. Marine Corps as an Infantry Officer and rose to the rank of Captain, is running for a U.S. Senate seat in Missouri as a Republican.

Brunner had apparently placed the U.S. Marine Corps logo on the back of his campaign bus. 

However, the Marine Corp's logo is federally registered as a trademark, and the Corps clearly frowns on the use of the proud logo for unauthorized commercial or political purposes.

Here is an excerpt from the U.S. Marine Corp's Frequently Asked Questions about its licensing program:

I'm running for a political office and am a former Marine. 

Can I use Marine Corps trademarks on my campaign materials?  

No, you may not use the official Marine Corps Seal, Eagle, Globe and Anchor (EGA), or any other USMC insignia or trademark in this manner, since it might create the impression that your candidacy is endorsed by or affiliated with the USMC in some way, or that the USMC has chosen your candidacy over other candidates. 

You are more than welcome, to simply and accurately state that you are a Marine Corps veteran, that's fine, that's a fact. 

But using the EGA which is a trademark of the USMC, and protected by Federal law (please see 10 USC 7881) is something you may not do. 

This is consistent with the Marine Corps Uniform Regulations which clearly states that the wearing of the uniform in a political context is strictly prohibited. Please see Section 11002(1)(a)(2) and (3) of the Marine Corps Uniform Regulations.

The trademark issue had surfaced when local reporters questioned the propriety of Brunner using the logo on his campaign bus under federal laws.

In a statement to local news on Saturday, Brunner's Press Secretary John Sutter said "The campaign believes that the RV does not constitute campaign materials, but we will remove the sticker just to be cautious."

Harley-Davidson Loses Bid to Dismiss Artist's Case Based on Long Delay

Harley-Davidson has lost an early bid to dismiss a Complaint filed against it by a freelance artist who claims the motorcycle maker used his logos outside of the scope of a license.

Wayne Wm. Peterson, a freelance commercial artist, had produced numerous well-known logos for the Harley-Davidson companies between the mid-1970's and the mid-2000's. 

The famous "LIVE TO RIDE, RIDE TO LIVE" eagle was one of Peterson's creations.

The decision explained that the Court could not rule that Peterson's delay, while admittedly long, constituted an unreasonably long delay barring all relief, on its face.

Under Federal Rule of Civil Procedure 12(b)(6), whenever a Defendant moves to dismiss a Complaint for failure to even state a claim, all the facts specifically plead in the Complaint are assumed to be true, and all reasonable inferences in the Complaint are construed in the Plaintiff's favor.

Harley-Davidson had argued that, even viewed in this favorable light, the Plaintiff's long delay in bringing suit constituted a disabling estoppel by laches, and violated a statute of limitations that should be applied to his copyright claims for conduct occurring before 2009.

However, the District Court stated that any dismissal would not be warranted solely on the basis of the Complaint alone, in the absence of the parties conducting discovery, because laches is an affirmative defense that Harley-Davidson bears the burden of proving.

Harley-Davidson is now free to develop a full record through discovery to establish the proposition that the Plaintiff's long delay was indeed inexcusable and caused it prejudice.

Can Politicians Become Trademarks? Are Voters Just "Consumers"?

The Obama Rising Sun Trademark

Even though politicians' names, campaign emblems and slogans are used in all manner of political speech, they may still be fully protectable as commercial trademarks.  Voters and political participants may be treated as "consumers" under applicable trademark laws. Case in point:  Just last month, President Barack Obama's campaign committee filed a trademark infringement lawsuit against a Washington D.C.-based company for using the campaign's "Rising Sun" logo without permission. The Obama campaign sued Washington Promotions & Printing Inc. in federal court, claiming the company's website DemStore.com has been selling unauthorized merchandise featuring the campaign's "Rising Sun" logo. According to the Complaint, the Obama campaign had sent several cease and desist letters last year, but the Defendants continued to infringe. "[The] Defendants are using the Rising Sun Trademarks on merchandise in a deliberate and willful attempt to draw on the goodwill and commercial magnetism of the Rising Sun Trademarks and the Obama Campaigns," the Complaint alleges.

The Obama campaign federally trademarked the “Rising Sun” logo in 2008, according to the Complaint.  It filed for a trademark registration on a similar logo for Obama’s re-election campaign in April 2011. According to the complaint, the Obama campaign is concerned that DemStore’s use of the logo “is likely to create confusion” among "consumers." “[E]ach time a supporter makes a relatively small purchase on the website, [Obama for America] obtains that individual’s contact information, which OFA can then use to reach out to that individual repeatedly to seek further donations and further opportunities to promote the Campaign,” the Complaint alleges. The campaign “relies largely on promoting a certain message,” according to the complaint, including exercising “strict control over the consumers’ experience on its website and at other marketplaces” selling authorized merchandise. 
And (former) Republican politicians have taken the trademarking theory to the next level.  Last year, Sarah Palin sought to federally trademark her name, devoid of logos.  After her application was initially rejected for being unsigned, the mark proceeded to federal registration on the Principal Register.