Description
Sales of this item are in full compliance withUnited States
Federal Law: 18 USC § 716 et seq:
(a) Whoever—
(1) knowingly transfers,
transports, or receives, in interstate or foreign commerce, a counterfeit
official insignia or uniform;
(2) knowingly transfers,
in interstate or foreign commerce, a genuine official insignia or uniform to an
individual, knowing that such individual is not authorized to possess it under
the law of the place in which the badge is the official official insignia or
uniform;
(3) knowingly receives a
genuine official insignia or uniform in a transfer prohibited by paragraph (2);
or
(4) being a person not
authorized to possess a genuine official insignia or uniform under the law of
the place in which the badge is the official insignia or uniform, knowingly
transports that badge in interstate or foreign commerce, shall be fined under
this title or imprisoned not more than 6 months, or both.
(b) It
is a defense to a prosecution under this section that the insignia or uniform
is other than a counterfeit insignia or uniform and is not used to mislead or
deceive, or is used or is intended to be used exclusively—
(1) as a memento, or in
a collection or exhibit;
(2) for decorative
purposes;
(3) for a dramatic presentation,
such as a theatrical, film, or television production; or
(4) for any other
recreational purpose.
(c) As
used in this section—
(1) the term “genuine
police badge” means an official badge issued by public authority to identify an
individual as a law enforcement officer having police powers;
(2) the term
“counterfeit police badge” means an item that so resembles a police badge that
it would deceive an ordinary individual into believing it was a genuine police
badge; and
(3) the term “official
insignia or uniform” means an article of distinctive clothing or insignia,
including a badge, emblem or identification card, that is an indicium of the
authority of a public employee;
(4) the term “public
employee” means any officer or employee of the Federal Government or of a State
or local government; and
(5) the term “uniform”
means distinctive clothing or other items of dress, whether real or
counterfeit, worn during the performance of official duties and which
identifies the wearer as a public agency employee.
(d) It
is a defense to a prosecution under this section that the official insignia or
uniform is not used or intended to be used to mislead or deceive, or is a
counterfeit insignia or uniform and is used or is intended to be used
exclusively—
(1) for a dramatic
presentation, such as a theatrical, film, or television production; or
(2) for legitimate law
enforcement purposes.
A. The
Use of Another’s Trademark In A Descriptive Sense
It is a basic principle marking an outer
boundary of the trademark monopoly that, while trademark rights may be acquired
in a word, symbol or device, acquisition of those rights does not prevent
others from using the word, symbol or devise in good faith in its descriptive
sense, and not as a trademark. “This principle is of great importance
because it protects the right of society at large to use words or images in
their primary descriptive sense, as against the claims of a trademark owner to
exclusivity.” Car-Freshner Corp. v. S.C. Johnson & Son, Inc., 70 F.3d 267, 269
(2d Cir. 1995); see Champion Spark Plug Co. v. Sanders, 331 U.S.
125 (1947) (registering proper noun as trademark does not withdraw it from
language, nor reduce it to exclusive possession of registrant). To come
within this fair use defense a person must make use of the other party’s
trademark (i) other than as a mark, (ii) in a descriptive sense, and (iii) in
good faith. See 15 U.S.C. §1115(b)(4).
B. Reference
to the Owner of the Mark or the Owner’s Goods or Services
Another species of the fair use defense is the
use of a mark when referring to the owner of a mark or the owner’s goods or
services. Once again, this defense is only available if the unauthorized
user is not using the term for purposes of source identification and the use
does not imply sponsorship or endorsement by the trademark
owner. Obviously, a great deal of useful social and commercial dialogue
would be all but impossible if speakers were under threat of an infringement lawsuit
every time they made reference to a person, company or product by using its
trademarks.
In New Kids on the Block v. North American
Pub., Inc., 971 F2d 302 (9th Cir. 1992), the Ninth Circuit affirmed
summary judgment in favor of the defendant newspapers which had used the
trademarked name of the band “New Kids on the Block” to refer to the band in
polls it conducted for the purpose of stimulating newspaper sales. The
Court referred to a “class of cases where the use of the trademark does not
attempt to capitalize on consumer confusion or to appropriate the cachet of one
product for a different one,” noting that “[s]uch nominative use of a mark –
where the only word reasonably available to describe a particular thing is
pressed into service – lies outside the strictures of trademark law: The
Ninth Circuit stated that a commercial user is entitled to a nominative fair
use defense if the user meets the following three requirements: (i) the
product or service in issue must not be readily identifiable without reference
to the mark; (ii) only so much of the mark may be used as is reasonably
necessary to identify the product or service; and (iii) the user must not do
anything to imply sponsorship or endorsement by the trademark owner. New
Kids on the Block, 971 F2d at 308.
C. The
First Sale
Doctrine
The unauthorized use of another’s trademark is
also permitted under the “first sale” doctrine. Under this doctrine a
business that resells genuine, non-adulterated goods bearing a true mark cannot
be held liable for trademark infringement, even if the distributor had no
authority to do so from the actual trademark owner. See Polymer
Technology Corp. v. Mimran, 975 F.2d 58 (2d Cir. 1992). “After
the first sale, the brandholder’s control is deemed exhausted [and
d]own-the-line retailers are free to display and advertise the branded
goods. Secondhand dealers may advertise the branded merchandise for resale
in competition with the sales of the markholder . . . .” Osawa
& Co. v. B&H Photo, 589 F.Supp. 1163 (S.D.N.Y. 1984).
