The Department of Homeland Security recently updated its website to identify agency intellectual property that should not be used without prior authorization from the agency. The website identifies a long list of agency related trademarks including those applicable to well known agency programs. Whether all of the claimed trademarks would prove enforceable if challenged remains to be seen. The agency's asserted blanket "no use" prohibition without prior consent also is legally suspect. Regardless, the newly published list serves as a reminder that contractors must use the government identifiers with care in connection with any promotional or advertising materials.
Even absent such a trademark designation, federal, state and foreign laws and regulations restrict the use in promotional or advertising materials of government personnel images, uniforms and insignia without specific, prior authorization. Indeed, applicable laws, in many cases, impose civil or criminal sanctions for such misuse.
Federal restrictions require that promotional or advertising materials not include any content that could be interpreted to imply affiliation with, or endorsement by, any agency, branch, office or other instrumentality of the United States.[i] Generally the prohibition includes:
- Identifiable personnel employed by federal entities ("Federal Personnel")[ii]
- Official insignias or other identifying symbols used by federal entities[iii]
- Authentic uniforms, markings or other designations used by Department of Defense entities[iv]
Nor should promotional or advertising material use the name or initials of a federal entity in a manner that could be interpreted to imply affiliation with that federal entity or endorsement by that federal entity of a company or its products or services.[v]
To ensure compliance with applicable laws and regulations, contractor personnel should obtain legal review, prior to release or publication, of any promotional or advertising materials that contain content related to federal entities. Examples of images that may used without prior consent, but that require careful consideration, include the following:[vi]
- Federal Personnel carrying out their official duties[vii]
- Such images may be included only in communication media that are solely informational in nature, and are not directly or indirectly associated with a marketing, advertising or self-promoting activity.
- Compliant uses may include the depiction in news stories located on a company's website of Federal Personnel visiting its facilities or participating in government-sanctioned roll-out ceremonies showcasing the company's capabilities.
- Fictional portrayals of Federal Personnel
- Such images may not, however, include authentic military uniforms, insignia or other identifying features, e.g., branch of service, awards, badges, buttons, ribbons, etc.
- Compliant results may be achieved by using unadorned camouflage attire or fictional military insignias.
- Federal materiel that does not include distinctive markings, designations or other features that may connote endorsement by a federal entity
- Examples of prohibited designations and markings include "United States Navy," "F-18" and "Apollo." Prior approval should be sought prior to use of such official designations and markings in marketing or promotional material.
- Compliant results may be achieved by airbrushing, or positioning images to obscure, distinctive markings or designations.
Because the applicable laws and regulations vary by agency and context, we suggest that company counsel and management should review and approve promotional or advertising materials related to federal entities on a case-by-case basis.
Laws and regulations governing the permissible use in promotional or advertising materials of state personnel, uniforms, insignia and materiel vary from state to state. Before using such data, you should consult with someone expert in the laws of the state involved. Of course, any data marked with a copyright, trademark, or service mark requires consent prior to its use in marketing or advertising material.
Laws and regulations governing the permissible use in promotional or advertising materials of foreign government (or international organization) personnel, uniforms, insignia and materiel vary from country to country. In addition, the use of these materials may be restricted based upon foreign customs and practice. Accordingly, a company is well advised to not release or publish such promotional or advertising materials without obtaining the prior review and approval of experts in the particular country.