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Monday, October 8, 2012

Navy Camouflage Trademark Approved Post Appeal

The U.S. Navy has been approved for a trademark on their NWU 1 camouflage pattern, also recognized as NAVPAT or Navy Digital Pattern as it was the first pixelated pattern utilized by the Navy. Separate trademarks were designated for a four color block shaped digital pattern including Black, Deck Grey, Light, Grey, and Navy Blue.

The trademark is to be utilized to protect against those utilizing the pattern on all or part of any goods without authorization. The Navy also received a trademark for the Navy Logo used in conjunction with the pattern utilizing two different Blue or Grey dominant color palettes as per a disposition mailed September 29th by the Trademark Trial and Appeal Board for the United States Patent and Trademark Office.

USN Logo
Photo by US Navy
Initially an examining turned down the trademark application on the basis of the pattern being both functional and ornamental. The Navy appealed stating that the pattern was neither functional or ornamental and that the pattern and logo met the needs of distinctiveness. After the examiner first gave grievance to the pattern being functional in terms of effectiveness for concealment, he recanted at the objection of the Navy and changed his stance to it being functional for hiding stains. 

The disposition points out that The Trademark act prohibits the registration of a mark that comprises any matter that, as a whole, is functional. In general terms, the design  as a trademark if it is essential to the use or purpose of the article or if it affects the cost or quality of the article. The Navy pointed out in their defense that they could have chosen any pattern for their needs. In the end it was agreed by the Trademark Trial and Appeal Board that the pattern was not functional and that alternative patterns could have been utilized for concealing stains. A final request was made that the descriptions for the pattern and logo be altered to not include any unnecessary language inevitably resulting in an approved trademark.

Navy Working Uniform I
Photo by US Navy Seaman Aguirre
We are not surprised by these findings, but it does bring up good questions as to the legalities of trademarking a camouflage pattern. Clearly there are patterns that are developed to provide a function i.e. concealment. The U.S. Navy was clear that this was not the case for this pattern nor have we seen any documentation to show that they would be seeking a trademark for their AOR1 and AOR2 Pattern, though one would suspect such a matter could arise to further protect against misappropriation of the patterns.

We don't know all the ins and outs of IP law and clearly other factors play into the use of camouflage outside of trademarks, however overall interpretation of the law will be quite interesting if any future cases arise. Typically the threat of lawsuit and associated court costs are reason enough to avoid unauthorized use of a clearly distinct camouflage pattern, but we are sure grey areas will arise that can lead to legal proceedings. Clearly the Navy is well aware and doing everything in their power to protect their property.