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Disney Shamed Into Withdrawing "SEAL Team 6" Trademark Application

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The Wall Street Journal reports:

Walt Disney Co. said Wednesday that it would pull an application with the U.S. Patent and Trademark Office in which the entertainment giant sought the exclusive right to use the term "SEAL Team 6" on items ranging from toys and games to snow globes and Christmas stockings.

It was only a few weeks ago that Disney tried to snatch the rights to a name owned by the American taxpayer, leading to mockery and disgust from all comers.

According to the Journal, Disney withdrew its trademark application "out of deference to the Navy."

"We are fully committed to protecting our trademark rights," Commander Danny Hernandez, the chief Navy spokesman, said.

We took a look at the issue recently, speaking with an intellectual property attorney who had serious qualms about the whole  affair.

"Government entities can file for trademarks just like anybody else. But from the trademark search I did, there wasn’t anything filed by the Navy. The amazing thing to me is, whose idea was this? The Navy SEALS are heroes, but they’re not Disney heroes," Aaron Thalwitzer, a trademark attorney with Zies Widerman & Malek, said.

Thalwitzer explained that, while Disney has filed an application, they did not yet have the trademark for "SEAL Team 6."

"At this point, the senior user of the SEAL Team 6 trademark is the US Navy. Disney has announced their 'intent to use.' I'm not sure I really see this working for them," he said.

Disney has shown that it not only has the resources to out-litigate just about any other entity on the planet, they also have the connections to get its way far more often than not.

In 2002, Stanford law professor Lawrence Lessig told Foreign Affairs magazine that "it seems that every time Mickey Mouse is about to fall into the public domain Congress gives him (and other copyrights) a new lease on life. Congress increased the renewal period to 47 years in 1976, around the time Mickey's number came up. Then, Disney wooed Congress to get the Sonny Bono Copyright Term Extension Act of 1998; copyrights now last for the inventor's lifetime plus 70 years. This breaks the social bargain. Walt Disney created Mickey knowing that his company would profit from his creation for the 56 years that prevailed under the 1909 act. The public kept its end of the bargain. And since only ex ante incentives for investment matter, society gets nothing from giving more money for ideas already created."

Of the Bono Act and Disney's influence, Reason magazine's Jesse Walker wrote:

The very day Senate Majority Leader Trent Lott became a co-sponsor of the bill, the Center for Responsive Politics reports, the Disney Political Action Committee donated $1,000 to his campaign chest; within a month, it had also sent $20,000 in soft money to the National Republican Senatorial Committee. And Disney had help: Other entertainment giants, from Time-Warner to the Motion Picture Association of America, joined the lobbying effort, as did some well-known songwriters, such as Bob Dylan, and heirs of dead songwriters, such as George and Ira Gershwin.

The irony was rich: Disney, which draws heavily on public-domain characters and stories in its own products (Aladdin, the Little Mermaid, Mulan), was fighting to keep the cultural commons closed. And Dylan regularly bases his work on the chord structures, and sometimes lyrics, of older folk songs--"The Girl from the North Country" on "Scarborough Fair," "I Dreamed I Saw St. Augustine" on "I Dreamed I Saw Joe Hill Last Night." Yet there he was, demanding royalties from his music until 70 years after his death.

Meanwhile, the Gershwin heirs, who didn't even write the songs that keep them wealthy today, found themselves essentially arguing that the 20-year extension would somehow be a further incentive to their dead ancestors' creativity, a claim that smacks of either spiritualism or desperation.

It didn't sit well with David Post, a professor of law at Temple University, either. He told Walker:

It's a joke. It's a disgrace. There is no better example that I can imagine, literally, of Congress caving in to small, highly focused special interests. ... This was the sale of legislation in the crudest form. They should be ashamed.

While Disney was pursuing the exclusive use of SEAL Team 6, it seemingly went unnoticed that soldiers themselves can't even use military insignia for (barely) commercial purposes unless specifically authorized.

Air Force regulations state:

Department of Defense employees, their immediate families, and veterans have an implied license to use the Air Force symbol on personal items such as welcome home T-shirts, cakes, personalized candies, crafts and custom-made gifts.

However:

These items must not be created for sale, advertising or potential endorsements. Department of Defense employees, their families and veterans are required to get a license if they have a company, small business or hobby that intends to sell products bearing any Air Force trademark.

Disney was once beaten back by, of all people, a British porn producer who trademarked "A Place Where Dreams Come True."

Apparently, Disney finally backed down from the legal challenge and agreed to use "The place where dreams come true."

"It's a David v Goliath victory," the producer, Michael Wightman, said at the time.

Though, as Aaron Thalwitzer told me, the party with the deepest pockets tends to come out on top in trademark cases.

He said, half-jokingly, "These days, Disney probably has more resources to litigate than the US government."

Now that Disney has walked away, the Navy can concentrate on beating back another trademark application still working its way through the system:

Yes, CBS wants to own the rights to NCIS.
POSITION:  No positions in stocks mentioned.

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