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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: August 9, 2001

SUBJECT: Federal Acquisition Regulation (FAR); Trademarks for Government Products

SOURCE: Federal Register, August 9, 2001, Vol. 66, No. 154, page 42101

AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)

ACTION: Proposed Rule

SYNOPSIS: It is proposed that the FAR be amended to provide guidance on the use of names, symbols, and logos that describe government products, services, systems, and programs.

DATES: Comments on the proposed rule must be submitted no later than October 9, 2001.

ADDRESSES: Submit comments to General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405; e-mail to: farcase.1998-018@gsa.gov.

FOR FURTHER INFORMATION CONTACT: Victoria Moss, 202-501-4764.

SUPPLEMENTAL INFORMATION: This proposed rule would add FAR Subpart 27.X, Government-Unique Trademarks and Service Marks, and FAR 52.227-XX, Rights in Government-Unique Marks, to establish the process for either the government or a contractor to assert rights in a government-unique mark and to seek trademark or service mark protection.

The proposed rule would amend the FAR to add the following:

• FAR 27.X01, Definition, would define "government-unique mark" as "any mark that identifies and distinguishes goods first developed or manufactured in performance of a government contract or that identifies and distinguishes services first rendered in performance of a government contract."
  
  
• FAR 27.X02, General, would state that "trademarks are generally distinctive symbols, pictures, or words that distinguish and identify the origin of products...The owner of a trademark has exclusive rights to use it on the product it was intended to identify and often on related products. Service marks receive the same legal protection as trademarks but are meant to distinguish services rather than products."
  
  
• FAR 27.X03, Policy, would state, "The government has an interest in avoiding restrictions on competition, protecting agency goodwill, and avoiding liability for trademark infringement and dilution. To protect these interests, agencies may elect to register or assert rights in a government-unique mark. The government may then use the mark on an exclusive basis or may make the mark available on a nonexclusive basis. When the government decides not to register or assert rights in a government-unique mark, the contractor may register or assert rights in the mark."
  
  
• FAR 27.X04, Protection of Government-Unique Marks, would state, "when the clause at 52.227-XX, Rights in Government-Unique Marks, is inserted in the contract, the contractor must notify the government in writing of its intent to assert rights in, or file an application to register, a government-unique mark." It would allow the contractor to assert the rights if the government does not object within 120 days of receipt of the notification. However, "failure of the government to respond does not waive the government's right under the Trademark Act to contest the contractor's assertion of rights or application." In addition, the contractor would not be permitted to assert the rights or file the application if the government either chooses to assert its rights in the mark or objects to the contractor's intended action. However, if the government objects, the government and the contractor may negotiate conditions for contractor use of the government-unique mark.
  
  
• FAR 27.X05, Contract Clause, would require that FAR 52.227-XX be included in solicitations and contracts that include FAR 52.227-11, Patent Rights -- Retention by the Contractor (Short Form); FAR 52.227-12, Patent Rights -- Retention by the Contractor (Long Form); FAR 52.227-13, Patent Rights -- Acquisition by the Government; or FAR 52.227-14, Rights in Data -- General.
  
  
• FAR 52.227-XX, Rights in Government-Unique Marks, would repeat the definition of "government-unique mark" in FAR 27.X01 and the rights and procedures in FAR 27.X04.

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

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