Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 THE UNITED STATES NAVY
v.
UNITED STATES MANUFACTURING COMPANY
March 25, 1987
Hearing: June 24, 1986
Opposition No. 66,583, to application Serial No. 185,676, filed September 14, 1978.
A. F. Kwitnieski, Frank G. Nieman, William F. McCarthy and Lt. Col. Theodore G. Hess, USMC for The United States Navy
Christie, Parker & Hale for United States Manufacturing Company
Before Simms, Krugman and Cissel
Opinion by Cissel
Member
United States Manufacturing Company applied to register the stylized presentation of 'USMC' shown below for 'prostheses, fracture braces and orthopedic components--namely, orthopedic braces, orthoses and cervical collars.' [FN1]
Registration was refused by the Examining Attorney under Section 2(a) of the Lanham Act on the ground that the mark, as applied to applicant's goods, falsely suggests a connection with the United States Marine Corps. On appeal the Examining Attorney was reversed by this Board, which held that the Examining Attorney had failed to make of record evidence showing that a false connection between applicant's mark and the Marine Corps might be assumed by prospective purchasers of the goods bearing applicant's mark. [FN2]
When the mark was published under Section 12(a) of the Act, a timely Notice of Opposition was filed by The United States Navy. The United States Marine Corps is a part of opposer. As grounds for the opposition, opposer alleges that applicant's mark is unregistrable under Section 2(b) of the Act, which precludes registration of an insignia of the United States or any simulation of such an insignia; that applicant's mark is unregistrable under Section 2(a) of the Act because it falsely suggests a connection with a national symbol; and, alternatively, that applicant's mark is unregistrable because it is 'confusingly similar' to the initials 'USMC' as used by the opposer prior to the filing of applicant's application, misleading purchasers of applicant's goods into believing that the goods are developed, sponsored, specified or endorsed by the United States Marine Corps. Applicant denies the essential allegations of opposer's claims.
The record before us in this case is voluminous. In light of the size of the record, by special permission of the Board the parties were allowed to file extended briefs and given additional time to present their arguments at the oral hearing which was conducted. Notwithstanding the size of the record, the important facts necessary for our determination of this case are clear.
Opposer is part of an agency of the United States government. The United States Marine Corps is a separate, distinct military service within the Department of the Navy, with a proud tradition going back to 1775. Individuals identified themselves as Marines by using the initials 'USMC' after their names as early as 1809. Marine equipment has been stamped with the letters 'USMC' since at least as early as 1875. The letters have continued to be used in these and other ways. 'USMC' appears on the standard combat utility uniform of the Marines under the left breast pocket, it appears on a wide variety of equipment, identifying the equipment as belonging to the Marines, and it is used in connection with all kinds of activities promoting the Marine Corps. Opposer does not assert that it makes or sells goods under 'USMC' as a trademark, however, or that 'USMC' functions as a service mark within the meaning of the Lanham Act.
*2 Applicant, United States Manufacturing Company, is the largest manufacturer of prosthetic components, orthotic braces and components, fracture braces and cervical braces and collars in the United States. The prosthetic components are assembled by professional fitters according to doctors' prescriptions to make up prostheses, which are artificial substitutes for missing body parts, such as hands, arms, and legs. An orthosis is an appliance or apparatus used to support, improve or correct a function of movable parts of the body. Applicant markets component parts for prostheses, but sells complete orthotic braces as well as components which may be combined to make up orthotic braces.
Applicant began its business in 1946 and adopted 'USMC' as its trademark for its products during that same year. Use has been continuous since then on an ever-increasing variety of orthotic and prosthetic devices and on promotional materials and advertising relating to them. As noted above, applicant's products have been sold exclusively to certified practitioners who are working from doctors' prescriptions. This relatively small group within the medical profession is composed of trained professionals who specialize in fitting these kinds of devices. The evidence establishes that the patients, who are the ultimate users of the goods, do not usually even see the trademarks on the completed devices assembled by the fitters. It is the fitter, not the patient, who orders applicant's products and to whom the advertising and promotion of 'USMC' as a trademark for the goods is directed.
The first ground asserted as a basis for this opposition is that applicant's mark is an 'other insignia of the United States,' and is therefore unregistrable under Section 2(b) of the Lanham Act. We had two determinations to make with regard to this issue. First we had to decide whether prior to October 19, 1984 applicant's mark was an 'other insignia of the United States' or was instead registrable as a trademark for applicant's goods. Then we needed to determine whether, if the mark was otherwise registrable, 10 USC § 7881, Chapter 663 P.L. 98-525, Title XV, Part D, Section 1532(a)(1), which was enacted on October 19, 1984, had the effect of barring registration. For the reasons which follow we hold that the mark was not an insignia of the United States within the meaning of the Lanham Act prior to the enactment of P.L. 98-525, and that the enactment of that law did not adversely-affect the registrability of the mark.
Opposer conducted a national public opinion survey, other details of which are discussed below, which relates to several issues before us. Opposer contends that question number five of the survey demonstrates that 'USMC,' as shown in the block letter form in which it appears on the Marine Corps utility uniform, is recognized by a substantial portion of the general population as identifying the United States Marine Corps. We have a problem, discussed below, with the survey. The interviewers were predisposed to associate the letters with a government agency because an earlier question had related to other agencies, namely NASA and the FBI. The survey, therefore cannot be taken as proof that there is a public association of the magnitude asserted by opposer between 'USMC' and the Marine Corps. Even if the survey showed such an association, this would not prove that these letters are an insignia of the United States. The survey indicates that, when asked what the letters 'USMC,' in block letter form, stand for, seventy-eight percent responded that they thought the letters stood for the United States Marine Corps. When asked 'what images come to mind' when the letters are seen, seventy-five percent of the people responded by indicating they thought of military things like soldiers, war, fighting and so forth. Another seventeen percent thought of government, national defense, 'official' things, the flag, and the President. An additional twelve percent said the letters conjured up the image of strong, disciplined men or tough guys. These responses clearly indicate that the public associates these letters with the Marine Corps and its activities. They hardly support the conclusion that the letters are an insignia of the United States.
*3 The test for determining what constitutes an insignia of the United States is set forth in In re United States Department of the Interior, 142 USPQ 506 (TTAB 1964). In that case the 'ejusdem generis' rule of construction was applied to the language of Section 2(b), which bars registration of 'the flag or coat of arms or other insignia of the United States.' Under that rule of construction the reference to 'other insignia of the United States' was interpreted restrictively to include only insignia of the same general class as the flag or coats of arms of the United States.
Since both the flag and coat of arms are emblems of national authority it seems evident that other insignia of national authority such as the Great Seal of the United States, the Presidential Seal, and seals of government departments would be equally prohibited registration under Section 2(b). On the other hand, it appears equally evident that department insignia which are merely used to identify a service or facility of the Government are not insignia of national authority and that they therefore do not fall within the general prohibitions of this section of the Statute. supra, p. 507.
Clearly under this test the initials of the Marine Corps, which is part of the Navy, which itself is within the Department of Defense, cannot be construed as an 'other insignia of the United States' under Section 2(b) of the Lanham Act. The letters 'USMC' are nothing like a flag or coat of arms. These types of insignia are pictorial in nature, they can be described, but cannot be pronounced. Even if the letters could be construed to be an insignia, opposer has not shown that they would be seen as an insignia of the United States. Opposer blurs the distinction between its arguments on this point and its argument that the letters falsely suggest a connection with a national symbol under Section 2(a) of the Act, but the record is clear that, just as in the Department of the Interior case, supra, these letters identify people and things associated with a particular agency within a department of the executive branch of the government, rather than function as an insignia of national significance representing the authority of the government or the nation as a whole.
Opposer itself apparently was not completely convinced that it was clear that the initials 'USMC' would be held to be an insignia of the United States, because it spent a considerable amount of time and effort to get Congress to pass a law specifically declaring the letters in question to be an insignia of the United States. The record shows that this legislative effort was conducted during the pendency of this proceeding, albeit without applicant's knowledge, consent or participation. The relevant portions of the law appear below:
'10 USCS § 7881
'CHAPTER 663. NAMES and INSIGNIA
***
. . . Act Oct. 19, 1984, P.L. 98-525, Title XV., Part D, § 1532(a)(1) in part, 98 Stat. 2631 . . .
'7881. Unauthorized use of Marine Corps Insignia
*4 '(a) The seal, emblem, and initials of the United States Marine Corps shall be deemed to be insignia of the United States.
'(b) No person may, except with the written permission of the Secretary of the Navy, use or imitate the seal, emblem, name, or initials of the United States Marine Corps in connection with any promotion, goods, services, or commercial activity in a manner reasonably tending to suggest that such use is approved, endorsed, or authorized by the Marine Corps or any other component of the Department of Defense.
'Prior rights not affected. Act Oct. 19, 1984, P.L. 98-525, Title XV, Part D, § 1532(b), 98 Stat. 2631 provides: 'The amendments made by subsection (a) [adding Chapter 663, 10 USCS § 7881 . . .] shall not affect rights that vested before the date of enactment of this Act [enacted October 19, 1984].''
There is considerable room for debate as to whether or not applicant's use of 'USMC' on its products would be actionable under part (b) of this section. The question of whether applicant's use would reasonably tend to suggest that such use is approved, endorsed, or authorized by the Marine Corps is not ours to answer in this proceeding concerning trademark registrability, although it appears to be similar to the one we must face in determining whether applicant's use falsely suggests a connection under Section 2(a) of the Lanham Act.
Whatever the effect of a determination under part (b) would be, (and again, that determination would not be ours to make), by its own unambiguous terms, [FN3] the amendment deals only with 'use of the Marine Corps Insignia.' (Emphasis added). No mention of the Lanham Act or federal registration is made. The amendment does not relate to the right to register in any way except to make some 'uses' illegal, and as such, not a proper basis for registration. The amendment states specifically that the amendment 'shall not affect rights that vested before the date of enactment of this Act (enacted October 19, 1984).' Applicant had used the mark on its goods for almost forty years prior to the enactment of the amendment and, as a result of that use, had long ago acquired the right to use the mark. The amendment bars some uses of the initials after enactment of the amendment, but not where the right to use was established prior to enactment, as is the case here. Accordingly, the amendment to 10 U.S.C. § 7881 does not have the effect opposer intended it to have. It does not even affect applicant's right to use its mark, much less its right to register it.
In summary on this issue, applicant's mark was not an insignia of the United States before October 19, 1984 and applicant's prior established right to use the mark is not affected by the new law.
Next we turn to opposer's claim that Section 2(a) of the Lanham Act is a bar to registration of applicant's mark in connection with applicant's goods because the mark falsely suggests a connection with a national symbol. We have several problems with opposer's theory. Based on the record before us we cannot conclude that the letters 'USMC' are a national symbol. Furthermore, even if we look to the other language in Section 2(a) of the Lanham Act relating to the false suggestion of a connection with 'persons' or 'institutions' (the Navy is a juristic person within the meaning of Section 45 of the Act and the Marine Corps might be argued to be an institution) we cannot conclude that applicant's use of its mark on its goods falsely suggests a connection with the Marine Corps.
*5 To understand opposer's arguments and the difficulty we have accepting them, one must understand the survey commissioned by opposer. The door-to-door, personal interview survey was conducted by Total Research Corporation of Princeton, New Jersey, and seems to have been done in accordance with appropriate scientific statistical standards and accepted sampling methodology. If the interviewees had not been predisposed by prior questions to make an association with a government agency we would have no doubt that the results of the survey would have accurately reflected the opinions of the people who were interviewed. We also are convinced that the opinions expressed by those interviewed could then have been statistically extrapolated to present an accurate picture of what the general public's answers to the same questions would be. The predisposition problem notwithstanding, we would still have difficulty accepting the survey as proof of opposer's assertions. Our problems center around the questions and the people of whom they were asked, rather than the answers or the way the questions were asked.
The survey concerns only members of the general public. No attempt was made to restrict those interviewed to the people who actually purchase or use applicant's goods. The record is replete with testimony that applicant's goods are sold only to trained, certified professionals in the field of fitting patients with prostheses and orthoses from doctors' prescriptions. While there may, by chance, have been some of these professionals represented within the sample taken by opposer's surveyors, we must assume that the overwhelming majority of those interviewed were ordinary consumers with no understanding of what applicant's mark might mean to actual purchasers of applicant's goods.
Moreover, even if the proper people had been surveyed, the questions which were asked were not the proper questions to prove opposer's contentions. First, interviewees were asked whether they had seen each of four different sets of letters: NBC, IBM, FBI and NASA. Then they were asked what the letters stand for. A large percentage gave answers indicating they were familiar with the initials in connection with the famous organizations for which the initials stand. As noted above, the fact that two of these organizations are government agencies may have already predisposed the interviewees to be thinking about agencies of the United States. Next, applicant's mark was shown, in its stylized form, and the interviewees were asked what they thought the letters in applicant's mark stand for. Forty-six percent of those interviewed indicated 'the United States Marine Corps', 'the U.S. Marines' or 'the Marines.' Thirty-seven percent did not know what the letters stood for. Of those who could not answer the question, nine percent, when questioned further, thought the stylized letters were 'USMC,' and six percent of these people thought 'USMC' stood for something related to the United States Marine Corps. Statistically combining these results, opposer claims that fifty-two percent of the general public would think that applicant's mark stands for the United States Marine Corps.
*6 In the absence of the problem previously discussed concerning the interviewee's predisposition to associate government agencies with the letters, if the focus of our inquiry were what the general public thought the letters in applicant's mark stood for in the abstract, without reference to any particular goods, we would have no trouble concluding that a significant portion of that group associates the letters with the Marines. As noted above, however, this is not the proper question. The proper question is whether prospective purchasers of applicant's products think applicant's mark (not just the letters in it) suggests a connection with a national symbol or with opposer when it is used on applicant's goods.
The survey is not proof that the letters are a symbol of the nation, nor is any other evidence of record persuasive of this conclusion. All that has been proved on this point by the survey is that the initials of the Marine Corps are associated with the defense of our country, not that applicant's mark stands for or represents the country as a whole.
The next series of questions attempts to get to the 'false connection' issue. Interviewees were asked whether the letters shown in applicant's mark (again, not the mark in its stylized form, but rather the letters) 'if printed on' various articles, 'would or would not suggest' . . . 'government approval of the product.' The four products specified were an artificial leg, a can of dog food, a motorcycle helmet, and a lawn sprinkler. The results of these inquiries were hardly surprising: Twenty-eight percent thought the letters on an artificial leg would suggest government approval (fifty percent thought it would not); twenty-one percent thought the letters on a can of dog food would suggest government approval (fifty-eight percent thought not); twenty-four percent thought the letters on a motorcycle helmet would suggest government approval (fifty-seven percent thought not); and only eighteen percent thought the letters on a lawn sprinkler would suggest government approval of the device (sixty-two percent did not think so). If we were to disregard the fact that the interviewees were already predisposed to make an association with a government agency, from these results we would conclude that, when faced with a four letter combination beginning with the letters 'U.S.' on these products, the majority of the general public would not associate government approval of any of the products, but that a significant minority would associate government approval in each case, with the greatest number associating governmental approval with an artificial leg, followed in descending order by a motorcycle helmet, a can of dog food and a lawn sprinkler. The ranking of these items seems explainable in light of the varying levels of government regulation in the fields of medical products, highway safety devices, food products and consumer goods.
As noted above, however, our concern is not what the general public would associate with the letters. Even more significantly with respect to this series of questions, we are not concerned with whether an assumption of 'government' approval would be made by these people. Any letter combination beginning with the letters 'U.S.' is likely to suggest to at least some people that the United States government has something to do with the product on which the letters appear, especially after the FBI and NASA have already been mentioned. The issue here to be determined is whether the relevant purchasing public would assume a connection with opposer, in the form of the Marine Corps, when seeing applicant's mark on the goods set forth in the application. The reference to 'government' approval is far too general for us to conclude from the answers to these questions that applicant's mark, when used on its products, suggests a connection with the particular governmental entity known as the Marines.
*7 With respect to opposer's pleading under Section 2(a) of the Act, even if we treat opposer as a 'person' or 'institution,' the evidence of record does not convince us that purchasers could assume a connection between opposer and applicant based on applicant's use of its mark on its goods.
At this point a distinction must be made between the actual products applicant sells under its mark and the goods as they are identified in the application. Put simply, applicant sells all of its products, both prosthetic and orthotic devices and components, only to knowledgeable professional fitters who work from doctors' prescriptions, but some of the goods are identified in the application by using the broad, general term 'orthoses.' We must consider the goods to be as they are set forth in the application. Without restrictive language in the application to the contrary, even though applicant's actual goods move only through restricted channels of trade to sophisticated purchasers, we must decide this case based on the broad language used in the application, which includes all orthotic devices, such as elastic braces for tennis elbows and similar stretch bandage-type braces for knees, ankles and so forth. There is evidence in the record which shows that such products are sold at retail in drug stores and home health care centers, where ordinary consumers, rather than professional fitters, are the prospective purchasers.
The test for what constitutes the false suggestion of a connection under Section 2(a) of the Lanham Act is clearly described in In re Cotter & Co., 228 USPQ 202 (TTAB 1985). First we must ask if the name (or in this case the letters) claimed to be appropriated by another is unmistakably associated with the person or institution seeking relief. It is not enough to show only prior use or that opposer's use of the identity is famous. The mark must point uniquely to the opposer and must be recognized as doing so. Next we ask whether the opposer is connected with the goods sold by applicant under the mark. Then we must determine whether a connection with opposer would be presumed by purchasers of applicant's goods when they see the mark used on the goods.
In the present case, even if we were to accept the survey as evidence that the letters 'USMC,' in the stylized form used by applicant, are associated by the general public with opposer, we run into trouble with the final part of the test. These people, as noted above, are potential purchasers of orthoses. In a nonspecific context unrelated to any particular goods, it might even be that some of the sophisticated purchasers who constitute the market for the other goods recited in the application would associate 'USMC' with opposer. Thus the first part of the test could be met.
Opposer's argument also might pass the second part of the test. Opposer does not have a business connection in regard to the goods sold by applicant under the mark.
*8 The final part of the test under Section 2(a) is whether a connection with opposer would be presumed by purchasers of prostheses and orthoses when the mark is used on these products. We do not think that the purchasers of these goods would presume such a connection exists.
With respect to the prosthetic products the record is clear that members of the general public do not purchase these goods. The professionals who do purchase them, although they may know that the Marines use 'USMC' to identify themselves or their equipment, recognize the letters, as applied to prostheses, as indicating that applicant is the source of the goods. These sophisticated purchasers know that applicant is and has been for a long time the major domestic supplier of components for prostheses. They are also familiar with how these products move in commerce from the manufacturer to the ultimate user. They know that the Marine Corps does not manufacture, approve or endorse prostheses or the components from which they are made. Applicant's mark is well known to these people and would not be perceived by them as indicating endorsement or approval by opposer of prosthetic components. With regard to these purchasers the same is true for orthoses.
The general public, as we noted above, could also be considered to be potential purchasers of orthoses, as identified without restrictions in the application. Were it not for the above-mentioned problem that interviewees may have already been primed to think of government agencies, the survey could be interpreted as establishing not only that about half of the general public associates applicant's mark (in the abstract, without reference to any particular product) with the Marine Corps, but also that a substantial number of these people (twenty-eight percent) thought that if 'USMC' in block letter form were printed on an artifical leg, it would suggest government approval of the product. Even if we also ignore for a moment the previously discussed problems concerning the form of the letters and the difference between 'government approval' and a connection with opposer, this evidence, under any reasonable interpretation, only relates to prostheses. An artificial leg is not an orthotic device. It is prosthetic, and the record before us makes it abundantly clear that such goods are not purchased by these ordinary consumers. The survey does not address itself to the question of whether ordinary consumers who are prospective purchasers of orthoses bearing applicant's mark would assume a connection with opposer.
Opposer's claim therefore fails for lack of proof. Evidence of record plainly shows that actual purchasers of applicant's particular orthoses are sophisticated purchasers who would not assume a connection with opposer, but we have no evidence that ordinary consumers of orthoses would presume opposer's endorsement or approval from applicant's use of its mark on these kinds of goods. Opposer has not adduced any evidence of even a single incidence where a purchaser or prospective purchaser of the goods identified in the application thought opposer was the source of, or sponsored, or endorsed the goods. This is especially telling in light of the fact that applicant has for years sold its products to servicemen through Veterans Administration hospitals and clinics.
*9 In re Cotter & Co., supra, this Board held that 'WESTPOINT,' as used on firearms, falsely suggests a connection with the United States Military Academy, which was established as being also known as West Point. The goods there were held to be closely associated with a military post or reservation, which the academy is. In the case at hand we see no reasonable basis for concluding that ordinary consumers would think that elastic braces for tennis elbows or sprained ankles have any connection whatsoever with the Marine Corps. Although it is speculation, if these consumers had been surveyed properly on the question of whether applicant's mark, used on a prosthetic device, would suggest a connection with opposer, an affirmative response might have been explainable because the public would reasonably associate prosthetic devices with war injuries resulting in missing limbs. No such explanation seems to apply with respect to orthoses of the type which could be sold at retail to ordinary consumers. These goods appear to be unrelated to opposer's military activities.
If opposer's survey had shown potential purchasers of the goods identified in the application a copy of the mark sought to be registered and asked them who they thought produced or sold the goods identified in the application under the mark, the answers would have been persuasive evidence on the 2(a) issue. This question was not asked, however, and we cannot speculate as to what those answers might have been.
In summary, we have neither a logical nor an evidentiary basis for adopting opposer's thesis under Section 2(a). Likewise, regarding Section 2(b), opposer has not shown that applicant's mark was an insignia of the United States prior to the law making it one, or that that law effectively bars registration to applicant. Opposer's pleading that applicant's mark is 'confusingly similar' seems to be part of its 'false suggestion' claim under Section 2(a) of the Lanham Act. In any event there is no basis for us to conclude that likelihood of confusion, as typically raised in connection with Section 2(d) of the Act, has anything to do with this case in light of the fact that opposer does not use 'USMC' as a mark within the meaning of the Trademark Act.
Accordingly, the opposition is dismissed.
G. D. Krugman
R. F. Cissel
Members, Trademark Trial and Appeal Board
FN1. Serial No. 185,676, filed September 14, 1978, alleging first use on August 3, 1978.
FN2. Unpublished decision issued March 17, 1982.
FN3. In our view the legislation in question is not on its face subject to more than one reasonable interpretation. Accordingly, speculation as to what Congress intended, by way of consideration of opposer's version of the legislative history of the amendment, is inappropriate.
Simms
Member
Because I believe that the intervening law which Congress enacted as a part of the omnibus Department of Defense Authorization Act for 1985, 10 U.S.C. § 7881, is dispositive, I dissent.
*10 The United States Marine Corps, a separate military service within in the Department of the Navy, is an agency of the United States Government. Created in 1775 by an act of the Continental Congress, the Marine Corps now consists of around 200,000 Marines whose primary mission is to maintain and develop an amphibious capability in cooperation with other branches of the armed forces. According to opposer, the first known use of USMC was to identify a Marine in 1809 on a claim for expenses. Opposer has chronicled the use of those initials down to the present including its use on a wide variety of items including canteen covers, weapons, uniforms, Jeep vehicles, and other military equipment. Current regulations require that the initials be placed on the combat utility uniform to identify the individual as a Marine and to satisfy the requirement for proper identification of combatants under international law. The initials are widely used in recruiting and community service campaigns to show official Marine Corps sponsorship. Graves in battlefield cemeteries are also marked with the letters USMC. The public's knowledge of the significance of these letters is underscored by their appearance in numerous dictionary entries of record. The initials received exposure in the 1960s television series entitled 'Gomer Pyle, USMC,' reruns of which are still shown.
Against this bankground, opposer has brought what is probably the most extensive government trademark case in history. While the central issues pleaded, tried and briefed revolve around Sections 2(a) and 2(b) of the Trademark Act, [FN1] I believe this case must be decided in opposer's favor because of the result of a legislative initiative of the Marine Corps in 1983 that produced the legislation discussed in the majority opinion. Because this Board must apply the law in effect at the time it renders its decision, and because that intervening law supplies the rule of decision in this case, it is my firm opinion that we must hold, in accordance with that law, that, regardless of what may have been the case before October 19, 1984, the initials USMC are an insignia of the United States. Therefore, the only real issue before us is whether applicant's mark is a simulation of that insignia. I would find that it is and sustain this opposition.
The Supreme Court held in Bradley v. Richmond School Board, 416 U.S. 696 (1974) that an enactment of an intervening law while a case is pending is determinative unless the application of the law to the case would result in manifest injustice or there is statutory direction or legislative history to the contrary. The legislative history of Public Law 98-525, enacting 10 U.S.C. § 7881, has been developed and discussed by the parties in briefs which were filed in connection with opposer's motion for summary judgment submitted shortly after the enactment of the law and after all briefs on the case had been submitted. Because the Board deems any motion for summary judgment untimely that is filed after the commencement of trial, the motion for summary judgment was denied. However, the Board indicated in its action of April 8, 1986, that it would consider the arguments advanced in the briefs in connection with our final decision on the merits. The Board at that time also granted applicant's motion to strike the affidavit of counsel, offered in support of the motion to show the legislative history of the 1984 Act, stating that the trial period of this opposition proceeding had closed at the time that evidence was offered.
*11 10 U.S.C. § 7881 provides in relevant part as follows:
s 7881. Unauthorized Use of Marine Corps Insignia
(a) The seal, emblem, and initials of the United States Marine Corps shall be deemed to be insignia of the United States.
(b) No person may, except with the written permission of the Secretary of the Navy, use or imitate the seal, emblem, name, or initials of the United States Marine Corps in connection with any promotion, goods, services, or commercial activity in a manner reasonably tending to suggest that such use is approved, endorsed, or authorized by the Marine Corps or any other component of the Department of Defense.
***
Prior rights not affected. Act Oct. 19, 1984, P.L. 98-525, Title XV, Part D, § 1532(b), 98 Stat. 2631 provides: 'The amendments made by subsection (a) [adding Chapter 663, 10 USCS § 7881 . . .] shall not affect rights that vested before the date of the enactment of this Act [enacted October 19, 1984].'
I disagree with the majority's statement that Public Law 98-525 deals only with the use of Marine Corps insignia. Even disregarding the statements in the affidavit of counsel purporting to evidence the intent of Congress as it relates to enactment of Section 7881, there is no dispute that the draft provision was presented to the Senate Armed Services Committee together with a written explanation of its purpose and effect and a fact sheet which mentions this very opposition proceeding. That explanation and fact sheet appear as Appendix A and B. As explained to Congressional sponsors in those materials, proposed subsection (a) would recognize the Marine Corps insignia as insignia of the United States, the effect of which would be 'to deny registration as a trademark to any mark consisting of or similar to the seal, emblem and initials of the Marine Corps.' The fact sheet specifically indicates that the Marine Corps through the Department of the Navy has opposed the registration of the stylized letters USMC for 'orthopedic' and prosthetic devices before this Board. It is explained that the Marine Corps has asserted that applicant's mark is barred by Section 2(b) of the Lanham Act prohibiting the registration of 'insignia of the United States.' Apparently referring to this Board's earlier unpublished decision reversing the refusal of the Examining Attorney to register applicant's mark under Section 2(a), the fact sheet mentions the difficulty in succeeding based upon 'the narrow construction of the statutory terms by administrative and judicial decisions which preclude Marine Corps insignia from protection under the Lanham Act only because 'USMC' is an acronym for a government agency.' The fact sheet also mentions that this Board has recognized that 'national symbols' may be changed or enlarged by Congress (In re Consolidated Foods Corporation, 187 USPQ 63, 64 (TTAB 1975)) and that legislative relief is necessary to define and declare what marks are 'insignia of the United States' and to 'supply the rule of decision in the instant case.' [FN2] The report of the Senate Arms Services Committee (S. Rep. No. 98-500, 239 (99th Cong. 2d Sess. 1984)), attached as Appendix C, is further evidence of Congress' awareness of the Marine Corps' attempt to prevent registration herein and the difficulty it is having in this regard. ('However, because these names and symbols are not considered insignia of the United States and enjoy no statutory protection, the Marine Corps has not been totally successful in protecting the public from this misuse.') Clearly, therefore, the purpose of subsection (a) was to affect this very applicant's right to register. [FN3] My conviction that this act was intended to deal with more than remedies of the Marine Corps against use is further supported by the fact that the only place in Public Law 98-525 where the word 'insignia' appears, aside from the title, is in subsection (a). The word is not mentioned in subsection (b), which proscribes the use of the seal, emblem, name or initials of the Marine Corps under certain circumstances. Subsection (a) was clearly intended to provide the rule of decision in this case. By saying that the letters USMC are insignia of the United States, the Act also affects the right to register.
*12 The majority's argument that applicant's mark is registrable because of the saving provision is simply unpersuasive. It fails to come to grips with opposer's argument that while applicant's right to use its mark cannot be affected by the law, its right to register is.
While I agree with the majority that applicant has acquired vested trademark rights (i.e., the right to use its mark) through its prior lawful use of the USMC mark, rights which are not affected by the 1984 law, there can be no such 'vesting' of a right to register while an opposition proceeding is pending and that very right to register is an issue in a proceeding. Black's Law Dictionary defines 'vested' as follows:
Fixed; accrued; settled; absolute. Having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. To be 'vested,' a right must be more than a mere expectation based on an anticipation of the continuance of an existing law; it must have become a title, legal or equitable, to the present or future enforcement of a demand, or a legal exemption from the demand of another. (Emphasis added.)
The term 'vested rights' is also defined:
In constitutional law, rights which have so completely and definitely accrued to or settled in a person that they are not subject to be defeated or canceled by the act of any other private person, and which it is right and equitable that the government should recognize and protect, as being lawful in themselves, and settled according to the then current rules of law, and of which the individual could not be deprived arbitrarily without injustice, or of which he could not justly be deprived otherwise than by established methods of procedure and for the public welfare. Such interests as cannot be interfered with by retrospective laws; interests which it is proper for state to recognize and protect and of which individual cannot be deprived arbitrarily without injustice . . .
By stating that the amendments made by subsection (a) 'shall not affect rights that vested before the date of the enactment,' Congress was stating that rights based on commercial use of the initials USMC which does not cause confusion or deception, prior to the date of enactment, are not affected. While I agree with applicant that it had a pre-existing right based upon such lawful use in commerce to apply for federal registration, applicant's 'bundle of rights' in its trademark, in the absence of an actual registration or finally determined right to register, cannot be said to include the right to register, which reflects and enhances existing trademark rights. [FN4] Procedural, remedial and substantive rights in trademarks created by the Lanham Act and obtained as the result of a registration, such as access to federal courts, treble damages and attorney's fees, presumptive evidence of validity and prevention of importation of infringing marks, cannot be said to 'vest' in a party until such party obtains a registration or a final judicial determination of registrability. Additional rights acquired by registration are solely created by statute and do not exist until conferred, as opposer has argued. In other words, because the right to register cannot be considered a vested right, it is a right which may be affected by Public Law 98-525. [FN5]
*13 Moreover, in the face of the 1984 law proscribing use of USMC under certain circumstances, it is anomalous and appears to frustrate the will of Congress to allow applicant to add to its rights by obtaining a registration. Congress could have chosen a legislative alternative which would have permitted the registration of applicant's mark. As opposer has pointed out in its reply brief on the motion, the Senate Committee was presented with five alternative versions of the proposed statute to protect names and insignia of the Marine Corps. It chose not to adopt two versions, Appendix D and E, which had a saving clause for proceedings begun prior to enactment. Instead, Congress enacted the provision which exempted only vested rights and permitted application to pending cases. Accordingly, and in the absence of any statutory direction to the contrary, I would apply Section 7881(a) to this case. Hastings v. Earth Satellite Corp., 628 F.2d 85, 92 (DC Cir. 1980).
Finally, while this administrative board has, of course, no authority to declare an act of Congress unconstitutional, I would also reject applicant's arguments concerning the unconstitutionality of the 1984 Act, if given retroactive effect, as a violation of the separation of powers doctrine and a denial of procedural due process of a fair and impartial hearing guaranteed by the Fifth Amendment. While cases relied upon by applicant support the principle that the legislative branch may not encroach upon the authority of the judicial branch by directing a rule of decision in a case pending before the judiciary to which the government is a party (United States v. Klein, 80 U.S. 128 (1872)), here the amending legislation does not encroach upon the constitutional authority of the judicial branch. While our proceedings are quasi-judicial, the Board, a creature of Congress and part of the executive branch, is an administrative tribunal, and the amending legislation does not direct the result in a case pending before the judicial branch or alter the right of recourse to Article III courts after a final administrative decision. What Congress has done is to prescribe the subtantive law to be applied by the Board, an obviously legislative function.
Because Section 7881(a) is conclusive on the issue of whether the initials USMC are insignia of the United States, and because I would hold that applicant's mark is a simulation thereof, I would sustain this opposition. The Section 2(a) issues (whether applicant's mark falsely suggests a connection with a national symbol or with the Marine Corps as an institution), therefore, need not be decided.
Rany L. Simms
Member, Trademark Trial and Appeal Board
FN1. Those sections of the Trademark Act provide:
No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it--
(a) consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute;
(b) consists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof.
FN2. The parties have stipulated that applicant was not consulted or otherwise informed of the pending legislation or the Congressional hearings on the legislation. Despite this fact and the fact that the Marine Corps' factual submission to Congress may not have told the complete story concerning the use of applicant's current mark (or one similar thereto) for nearly forty years and that these statements may have left the erroneous implication that applicant's use had only recently begun, it is nevertheless clear that the history shows that the purpose of 10 U.S.C. § 7881(a), by defining the initials USMC as 'insignia of the United States,' in effect was to prohibit the registration as a trademark of such insignia.
FN3. Applicant has acknowledged that it was the 'focal point' of the new statute. Applicant's brief on motion, 34, 44, 45.
FN4. At one point in its brief, applicant appears to recognize this fact:
[T]he new statute's reference to 'rights that vested before . . . enactment' must refer to the protectible pre-existing exclusive rights established in the underlying mark as a result of its prior lawful use in the market, not enhanced rights from registration.
(Applicant's brief in opposition, p. 8)
FN5. The practical effect of the provision concerning vested rights is, I believe, to preclude attacks on registered marks. In this connection, I note that an interested party may seek cancellation of a mark at any time if it is barred by the provisions of Section 2(b). See Section 14(c), 15 U.S.C. § 1064(c). Congress obviously did not wish to authorize the cancellation of registrations reflecting longstanding rights that may now, as a result of the inclusion of the initials USMC as insignia, be considered violative of Section 2(b).
APPENDIX A
CHAPTER 663--NAMES and INSIGNIA
Unauthorized use of Marine Corps Insignia (sec. 7902)
*14 This section protects the name, seal, emblem, and initials of the United States Marine Corps from fraudulent and misleading commercial uses. A number of enterprises have borrowed the insignia and reputation of the Marine Corps to promote goods and services ranging from artificial limbs and braces to gasoline cans to a musical group. Marine Corps efforts to prevent these abuses have previously been frustrated by lack of appropriate legislation, and by expensive and prolonged litigation to restrain improper activities. This section is designed to correct these problems by prohibiting the private use for profit of Marine Corps insignia unless official permission for the use is first obtained, and by simplifying remedies for unauthorized uses of the insignia.
Subsection (a) declares the seal, emblem, and initials of the Marine Corps to be 'insignia of the United States.' Section 2(b) of the Trademark Act of 1946, 15 U.S.C. § 1052(b), provides that a trademark which simulates an insignia of the United States shall be refused registration. Subsection (a) recognizes Marine Corps insignia as insignia of the United States, which is a construction consistent with a broad definition of government insignia intended by the provision's original author, Arthur P. Greeley. The effect of subsection (a) is to deny registration as a trademark to any mark consisting of or similar to the seal, emblem, and initials of the Marine Corps.
Subsection (b) restricts the commercial use of the name, seal, emblem, or initials of the Marine Corps, but does not restrict the use of these insignia for civic or patriotic purposes unrelated to commerce. Commercial uses are prohibited absent written permission from the Secretary of the Navy if they 'reasonably tend' to suggest Marine Corps sponsorship or approval of goods or services. This standard is intended to include more commercial uses than a standard which prohibits uses that 'falsely' suggest Marine Corps sponsorship or approval. The 'reasonable tendency' standard prohibits any use of Marine Corps insignia which may suggest Marine Corps sponsorship or approval of goods or services, and is intended to eliminate the technical requirement for finding confusion within a particular trade channel. The standard should therefore prevent dilution of Marine Corps insignia.
Subsection (c) permits the Attorney General of the United States to enforce this section by obtaining an injunction, restraining order, or other remedy from a district court of the United States. This subsection simplifies previous procedures and reduces the cost and delay of litigation to protect Marine Corps insignia.
APPENDIX B
FACT SHEET
THE 'USMC' TRADEMARK CASE
The United States Marine Corps by and through the Department of the Navy has opposed the registration of the trademark 'USMC' before the Trademark Trail and Appeal Board in the United States Patent and Trademark Office. The United States Manufacturing Company of Pasadena, California, a manufacturer of orthopedic and prosthetic devices, is seeking to register the mark 'USMC' in green, block letters for its use:
*15 The Marine Corps asserts in its opposition that the word 'USMC' cannot be registered under section 2(b) of the Lanham Act, 15 U.S.C. § 1052(b) (1946), because it is an 'insignia of the United States.' In the alternative, the Marine Corps asserts under section 2(a) of the Act, 15 U.S.C. § 1052(a) (1946), that the mark is a 'national symbol' or a symbol of an 'institution' which would falsely suggest that the Marine Corps endorses or sponsors products manufactured by the United States Manufacturing Company. The legal obstacle in succeeding upon either ground is not a difficulty in the factual proof necessary to show that the mark 'USMC' is an 'insignia of the United States' or a 'national symbol' in the perception of the general public, but rather the difficulty lies in the narrow construction of the statutory terms by administrative and judicial decisions which preclude Marine Corps insignia from protection under the Lanham Act only because 'USMC' is an acronym for a government agency. The decisions recognize the power inherent in Congress to specifically define and declare marks which are 'insignia of the United States' or 'national symbols,' see, e.g., In re Consolidated Foods Corporation, 187 USPQ 63, 64 (TTAB 1975) ('it is recognized that national symbols may be changed or enlarged by the Congress or possibly Presidential decree'), and legislative relief is therefore appropriate to supply the rule of decision in the instant case.
The Marine Corps has offered into evidence in the case the results of a national survey which shows that the mark 'USMC' is an insignia or symbol of the authority of the United States in the perception of the general public. The survey was conducted by Total Research Corporation of Princeton, New Jersey, and was designed by Dr. Michael A. Rappeport, an expert on public opinion research generally and on trademark surveys in particular. The survey was conducted according to standards which exceeded industry and statutory evidentiary norms as to validation, compilation and interpretive techniques. When shown the green 'USMC' mark which the United States Manufacturing Company is seeking to register, 52 percent of the respondents sampled identified it as the insignia of the Marine Corps. Another 18 percent, for a total of 70 percent of the respondents sampled, identified the mark as belonging to some agency of the United States Government. When shown the actual Marine Corps insignia, 78 percent of those questioned identified it with the Marine Corps. When asked what images the insignia produced in their minds, 85 percent responded with images of the military, government and patriotism.
The results of the trademark survey clearly and convincingly reflect a national awareness of the Marine Corps insignia. The Marine Corps has used its 'USMC' insignia since the early 1800's. It first appeared on muster rolls and then became a method of identifying Marine Corps personnel and equipment. All Marines wear 'USMC' on their combat uniforms and Marine Corps tactical vehicles are marked with 'USMC.' We believe, after 184 years of use, 'USMC' has become a special national symbol deserving of the same protection afforded by statute to the seals, insignia and slogans of other government departments and patriotic societies (such as the American Legion, Boy Scouts and U.S. Olympic Committee), and that most Americans identify 'USMC' with the United States Marine Corps.
*16 The Marine Corps further contends, with reference to the special facts of the case, that the use of its mark on goods manufactured by United States Manufacturing Company suggests that the Marine Corps endorses or sponsors the products. That such a likelihood of confusion exists in the instant case is apparent from the historic development of the United States Manufacturing Company, and of the entire orthotic and prosthetic industry, in response to the needs of military hospitals and the Veterans Administration for uniform and standardized component parts in medical apparatus during and after World War II.
J. Morgan Greene, the Company's founder, learned his profession as a corpsman in the Navy, building and fitting devices for Marines and Navy men in military hospitals during World War II. The traditional nexus of the orthotics and prosthetics industry and of United States Manufacturing Company with military and veterans hospitals continues to the present day, with a significant portion of the sales of United States Manufacturing Company being to military and veterans hospitals and suppliers. This nexus is clearly likely to cause confusion with servicemen and veterans who are the end users of United States Manufacturing Company's medical apparatus. Furthermore, with the growth of the home health care market, it is increasingly possible that items bearing the 'USMC' mark could find their way into drugstores and home health care centers, causing obvious confusion in the minds of the general public. The Marine Corps is therefore concerned that the use of the 'USMC' mark on orthotic and prosthetic and related devices falsely suggests that the Marine Corps endorses or sponsors the products of United States Manufacturing Company. Accordingly, the Marine Corps urges the prompt enactment of suitable legislation to protect its insignia from further unauthorized use.
APPENDIX C
Calendar No. 944
98TH CONGRESS SENATE REPORT 98-500
Session
OMNIBUS DEFENSE AUTHORIZATION ACT, 1985
------------------------
REPORT
[To accompany S. 2723]
ON
AUTHORIZING APPROPRIATIONS FOR FISCAL YEAR 1985 FOR THE ARMED FORCES FOR
PROCUREMENT, FOR RESEARCH, DEVELOPMENT, TEST, and EVALUATION, and FOR
OPERATION and MAINTENANCE, TO PRESCRIBE PERSONNEL STRENGTHS FOR SUCH FISCAL
YEAR FOR THE ARMED FORCES and FOR CIVILIAN EMPLOYEES OF THE DEPARTMENT OF
DEFENSE, TO AUTHORIZE APPROPRIATIONS FOR SUCH FISCAL YEAR FOR CIVIL DEFENSE,
TO AUTHORIZE CERTAIN CONSTRUCTION AT MILITARY INSTALLATIONS FOR SUCH FISCAL
YEAR, TO AUTHORIZE APPROPRIATIONS FOR THE DEPARTMENT OF ENERGY FOR NATIONAL
SECURITY PROGRAMS FOR SUCH FISCAL YEAR, and FOR OTHER PURPOSES
together with
ADDITIONAL VIEWS
------------------------
COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE
MAY 31, 1984.--Ordered to be printed
SEC. 1004, GENDER CHANGE IN CRITERIA FOR DRAFT EXEMPTIONS
*17 The committee recommends a minor change to the statutory criteria that determine draft exemptions.
Section 6(o) of the Military Selective Service Act of 1967 (50 U.S C. App. 456(o)) provides that no person may be involuntarily inducted if his father, brother, or sister were killed in action or died in the line of duty while serving in the armed forces. The same exemption from the draft exists during any period of time in which the father, brother, or sister is in a captured or missing status as a result of such service.
Because a large number of women are serving in the military, it is conceivable that the mother of a young man eligible for induction could die, be missing, or be captured in the line of duty. Therefore, in an effort to be consistent, the committee proposes to include the phrase 'mother' in section 6(o) of the Act. The Director of the Selective Service System has advised the committee that he believes this change would be appropriate.
SEC. 1005, PROTECTION OF MARINE CORPS NAME and INSIGNIA
It has been brought to the committee's attention that, with few exceptions, the names and insignia of the armed Services do not enjoy specific statutory protection from misuse in the commercial arena. Recently, the Marine Corps has found itself attempting to prevent its insignia and name from being utilized by a variety of commercial activities.
One party has attempted to register the Marine Corps emblem as a trademark; another is utilizing that emblem on authentic looking certificates. Another commercial organization calling itself the 'The First Marine Band' has failed to pay its hotel bills which have been sent to the Marine Corps for payment. Other commercial enterprises have begun using the familiar initials of the Marine Corps, 'USMC', on gasoline cans and artificial limbs which are sold primarily to military and veterans medical facilities. The Marine Corps has been deluged with complaints about these commercial usages and has attempted to stop those using its name, initials, or symbols in a manner likely to cause the public to believe that the Marine Corps is endorsing, selling, or otherwise associated with these commercial endeavors. However, because these names and symbols are not considered insignia of the United States and enjoy no statutory protection, the Marine Corps has not been totally successful in protecting the public from this misuse.
The committee, therefore, recommends a provision which would provide statutory protection to these names and symbols from deceptive uses. A provision similar to that recommended by the committee is already contained in section 191 of title 10, United States Code, for the protection of the name, initials, and seal of the Defense Intelligence Agency.
The committee intends that the protection afforded to Marine Corps indicia under its provision be utilized in a fair and commonsense manner. It is not designed to prohibit the use of words and symbols associated with the Marine Corps simply because the use may not be pleasing, but rather it is designed only to protect the public from uses likely to produce confusion about the association or involvement of the Marine Corps with private commercial goods and services.
*18 Furthermore, the committee understands that the other Services are experiencing similar problems, but to a lesser degree. Therefore, the committee urges that this problem be fully reviewed within the Department of Defense and that the committee be advised if broader legislation, covering all the Services, is needed and appropriate.
TITLE I, PART G--CIVIL DEFENSE
The administration originally requested $252.48 million for the Nation's civil defense preparedness program in fiscal year 1985. The significant real growth over last year's enacted level was designed to enhance the ability of State and local jurisdictions to provide protection to their populations in the event of a wide range of possible emergencies.
In the administration's revised budget request, the funding request for civil defense was reduced to $190.48 million. This revised funding level provides for approximately 6 percent real growth in the civil defense program over fiscal year 1984. In accordance with the administration's action, the committee recommends that the sum of $190.48 million be provided for civil defense purposes in fiscal year 1985.
FISCAL YEAR 1985 CIVIL DEFENSE PROGRAM
[Budget authority in millions of dollars]
-------------------------------------------------------------------------------
Fiscal year 1984 Fiscal year 1985
-------------------------------------------------------------------------------
Original Enacted Original Revised
request request request
-------------------------------------------------------------------------------
State and local assistance ....... $141.44 $103.84 $140.90 $108.51
----------------------------------------------
State and local emergency
management ...................... 56.14 56.80 60.70 59.36
Radiological defense ............. 19.90 10.30 20.00 10.76
Population protection ....................... 13.00 23.70 13.58
Protection of industrial
capabilities .................... 36.50 4.70 5.20 4.91
S&L direction, control and
warning ......................... 28.90 19.04 31.30 19.90
----------------------------------------------
----------------------------------------------
Emergency planning assistance ..... 78.70 36.24 78.10 51.07
----------------------------------------------
Telecommunication and warning .... 42.40 15.24 49.90 27.82
Training and education ........... 16.50 15.43 18.90 17.42
Research ......................... 20.00 5.57 9.30 5.83
----------------------------------------------
----------------------------------------------
Salaries and expenses ............. 33.38 29.12 33.48 30.90
----------------------------------------------
Total Civil Defense ............. 253.52 169.20 252.48 190.48
-------------------------------------------------------------------------------
TITLE I, PART H--DEFENSE PROCUREMENT IMPROVEMENTS
SEC. 191, WEAPON SYSTEMS WARRANTIES
*19 The committee has been concerned for many years about management approaches in DOD to assure that weapon systems will meet the military requirement for which they are designed and
APPENDIX D
PROTECTION OF MARINE CORPS NAME and INSIGNIA
Sec. ___. (a) Part IV of subtitle C of title 10, United States Code, is amended by adding at the end thereof the following new chapter:
'Chapter 663.--NAMES and INSIGNIA
'Sec.
'7902. Unauthorized Use of Marine Corps Insignia.
's 7902. Unauthorized Use of Marine Corps Insignia.
'(a) No person may use or imitate the seal, emblem, name, or initials of the United States Marine Corps in connection with any merchandise, solicitation, or commercial activity, or to promote any not-for-profit activity, unless authorized by the Secretary of the Navy or his designee.
'(b) The Attorney General may initiate a civil proceeding in a district court of the United States, and such court shall enter such orders or prohibitions or take such other action, as is warranted to prevent the conduct prohibited by subsection (a).
'(c) Rights which have vested or proceedings which were begun before the enactment of this section shall not be affected.'
(b) The table of chapters at the beginning of subtitle C and the table of chapters at the beginning of part IV of subtitle C of such title are amended by inserting the following new item after the item relating to chapter 661:
'663. Names and Insignia -------- 7902'.
APPENDIX E
PROTECTION OF MARINE CORPS NAME and INSIGNIA
Sec. ___. (a) Part IV of subtitle C of title 10, United States Code, is amended by adding at the end thereof the following new chapter:
'Chapter 663.--NAMES and INSIGNIA
'Sec.
'7902. Unauthorized Use of Marine Corps Insignia.
's 7902. Unauthorized Use of Marine Corps Insignia.
'(a) No person may, except with the permission of the Secretary of the Navy or his designee, knowingly use or imitate the seal, emblem, name, or initials of the United States Marine Corps for the purpose of trade, to induce the sale of any goods or services, or to promote any not-for-profit activity in a manner reasonably tending to suggest that such use is approved, endorsed, or authorized by the Marine Corps or the Department of Defense and its components.
'(b) Whenever it appears to the Attorney General that any person is engaged or is about to engage in an act or practice which constitutes or will constitute conduct prohibited by subsection (a), the Attorney General may initiate a civil proceeding in a district court of the United States to enjoin such act or practice. Such court may, at any time before final determination, enter such restraining orders or prohibitions, or take such other action as is warranted, to prevent injury to the United States or to any person or class of persons for whose protection the action is brought.'
(b) The amendment made by this section shall not affect rights that vested and proceedings that were begun before the date of enactment of this Act.
*20 (c) The table of chapters at the beginning of subtitle C and the table of chapters at the beginning of part IV of subtitle C of such title are amended by inserting the following new item after the item relating to chapter 661:
'663. Names and Insignia -------- 7902'.