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The Cost of Free Publicity

by Glen Emerson Morris

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Nearly two years after it began, a legally imposed ban on American Airlines aircraft on the Internet was lifted, and flight simulator fans could again download free digital versions of American Airlines airliners. The problem for American Airlines began in early summer of 1999, when a company the airlines used to license use of its trademarks and logos gave exclusive right to digital versions of American Airlines aircraft to one lone software developer. The software developer wanted to sell digital versions of AA aircraft, so they pressured the airline into demanding that flight simulator Websites quit making files of AA aircraft available for free download.

While restricting the presence of American Airlines on the Internet may have helped the software developer, it did not prove to be in the best interests of American Airlines at all.

Before long, American Airlines was facing a minor public relations disaster and boycott, largely for decisions a sub-contractor made. Citing it had little choice under current law, American Airlines stuck to its guns, and, for two years, AA has been the only major commercial airline to be missing from the major flight simulator download sites.

In mid-April 2001, American Airlines announced a new policy of allowing fans and Websites to distribute free digital versions of AA aircraft, provided written permission was obtained from American Airlines first. To get permission, hobbyists only need to fill out a simple one page form, acknowledging that American Airlines is the sole owner of the trademarks, promising to add a disclaimer from AA, and pledging that no commercial use of any kind will be made of the trademarks.

American Airlines went to great lengths to point out that their course of action over the past two years has been the only course they could take under current law, at least and still protect their legal rights to their trademarks and logos.

So why is American Airlines the only airline apparently asking for permission to use their logos while nearly every other airline that ever existed anywhere seems to be well represented on the Internet, with no sign of permission at all? Is American overstating the legal issues, or are the other airlines ignoring some fundamental trademark law at their own risk?

The answer seems to be that American Airlines is about the only airline following the law. The other airlines are ignoring the problem, and getting by because they aren't giving anyone rights to use their logo exclusively in any media, and so far, relatively speaking, the actual number of trademark violations happening on the net is relatively small and innocuous.

Whether ignoring trademark issues will work in the future is another matter. The growing popularity of programs which simulate some aspect of reality, from airlines to cities, will increase the occurrences of hobbyists including their favorite trademarks and logos in the digital add-ons they create and distribute.

Microsoft's latest simulation, MS Train Simulator, is only likely to make matters worse. Though based on different code, Microsoft Train Simulator has an open architecture approach similar to Microsoft Flight Simulator. Since the MS Train Simulator only comes with about 600 miles of track for both the USA and Europe combined, most of the track will come from MS Train Simulator users. In fact, a Website has already been setup to act as a download center for MS Train Simulator add-ons, modeled after the Websites for MS Flight Simulator.

Over the next few years, MS Train Simulator fans will create thousands, possibly millions, of miles of add-on train routes for MS Train Simulator. In the process, fans will include countless buildings, billboards, and vehicles with unlicensed trademarks, trade names, images, and logos. Ultimately, the number of restricted items available for MS Train Simulator will be probably be far greater than for MS Flight Simulator, because train passengers see more billboards & buildings out their windows than plane passengers.

To expect that every company in the country constantly patrol flight, train, and other simulator sites on the Internet or face loosing their trademarks and logos may simply be asking too much. It's also questionable as to whether companies should have to set up expensive approval systems for granting hobbyists permission to make and give away free simulator accessories. Part of the philosophy of the current trademark system is that while it requires companies to defend their trademarks, it also allows them to recover the costs of doing so. Companies that find themselves in the position of having to take trademark violators to court, also know they are allowed to recover the costs taking the case to court. Companies that want to license use of their trademarks know that they can recover the actual costs of licensing from the fees they charge.

However, in the case of non-commercial use of trademarks, companies seem to be at a disadvantage. The costs of taking thousands of hobbyists to court to stop trademark violations via simulator add-on Websites would be enormous, and it would be unlikely that the company could ever collect enough from the hobbyists to recover costs. It is also obvious that the setup and staffing of a system to required approve requests for permission would be a cost that would never be recovered either, since there would be no fees collected to fund it.

In the old days, that is, in pre-digital times, there was no way for hobbyists to create and distribute mass copies of anything they built for their own train layouts. If they added billboards to their layouts with the images and trade marks of their favorite products, it didn't raise any significant legal issues. However, now that hobbyists are building digital train layouts, and digital airlines, and they can share a digital copy of that billboard will millions of people overnight, legal issues are unavoidable under current law.

Increasingly, it's becoming apparent that current trademark law was never designed to work in world where something like the Internet existed. Ignoring the problem is only going to work for so long. Unless the law is changed, some companies may find that the free publicity they've been enjoying may turn out to be far more expensive than they ever imagined.

Copyright 1994 - 2010 by Glen Emerson Morris All Rights Reserved

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