Trademarks in the Aviation Industry: Protecting the Brand Requires Proactivity

In today’s digital age, now more than ever carriers need to be vigilant in protecting their trademarks. Airlines may find their brands infringed in unexpected places.

For example, digital trademark issues have recently arisen in the world of online flight simulator networks. The Virtual Air Traffic Simulation Network (VATSIM) and International Virtual Aviation Organization (IVAO) are nonprofit gaming networks that connect hundreds of thousands of amateur aviation enthusiasts across the globe.  Users can create “virtual” airlines simulating the day-to-day operations of real air carriers, including piloting simulated flights and directing air traffic control.  “Virtual” airlines commonly mirror real-world commercial carriers and, in many cases, will use a carrier’s domain name, logo, aircraft livery, and call signs to add authenticity to the experience.  The websites are designed to mirror the real-world carrier’s online presence as closely as possible, including on social media.  These “virtual” doppelgangers may profit from an airline’s brand recognition by selling advertising space and creating the false impression of being endorsed or even managed by their real-world counterparts.  Carriers generally can bring such unauthorized use of its trademarks under control by working with the “virtual” airline site’s administrators and web hosts.

U.S. courts have held that use of a company’s trademarks in the digital gaming context may constitute unlawful trademark infringement. In a recent California case, the aircraft manufacturer Bell Helicopter was involved in litigation with one of the world’s largest video game developers, Electronic Arts, Inc. (EA), regarding realistic reproductions of its products in the military combat video game Battlefield 3.1  EA sued Textron, owner of Bell Helicopter’s trademarks, for a declaratory judgment stating that its reproduction of Bell Helicopter products was not trademark infringement because it was artistic expression protected by the “fair use” doctrine.  The U.S. District Court for the Northern District of California rejected EA’s argument, finding that a jury could determine the realistic depiction of Bell Helicopter products to be a “central selling point” of the game and could lead users to believe Bell Helicopter had assisted with development or endorsed the game.  The case is particularly significant because EA had attempted to negotiate a license for the use of Bell Helicopter’s brands in the game prior to the litigation; when no agreement was reached, it simply used them without permission and added a disclaimer to the game’s packaging.  The Court’s determination that the appearance of Bell Helicopter’s products game did not constitute “fair use” resulted in a favorable decision for Textron and, ultimately, settlement.

Intellectual property law provides important tools for air carriers to establish and protect their brands and communicate with their customers, but carriers must effectively police their marks. An airline’s portfolio of trademarks, from the company name and logo to particular marketing campaigns, can be difficult to protect if not registered with the United States Patent and Trademark Office (USPTO).  Even if an airline’s brand is well known, it may prove more difficult to prevent unauthorized use without valid USPTO registration.  Indeed, unregistered marks may even be appropriated by unauthorized users.  A well-prepared trademark holder, by contrast, is much better positioned to put a stop to infringing activity.

1 Elec. Arts, Inc. v. Textron Inc., No. C 12-00118 WHA, 2012 WL 3042668 (N.D. Cal. July 25, 2012).