[Federal Register Volume 66, Number 154 (Thursday, August 9, 2001)]
[Proposed Rules]
[Pages 42101-42103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19928]



[[Page 42101]]

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Part V





Department of Defense

General Services Administration

National Aeronautics and Space Administration





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48 CFR Parts 27 and 52



Federal Acquisition Regulation; Trademarks for Government Products; 
Proposed Rule

Federal Register / Vol. 66, No. 154 / Thursday, August 9, 2001 / 
Proposed Rules

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 27 and 52

[FAR Case 1998-018]
RIN 9000-AI98


Federal Acquisition Regulation; Trademarks for Government 
Products

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

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to provide guidance on the use of 
names, symbols, and logos that describe Government products, services, 
systems, and programs.

DATES: Interested parties should submit comments in writing on or 
before October 9, 2001 to be considered in the formulation of a final 
rule.

ADDRESSES: Submit written comments to: General Services Administration, 
FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, ATTN: Laurie 
Duarte, Washington, DC 20405.
    Submit electronic comments via the Internet to: farcase.1998-018@gsa.gov.
    Please submit comments only and cite FAR case 1998-018 in all 
correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC, 20405, at (202) 501-4755 for information 
pertaining to status or publication schedules. For clarification of 
content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-
4764. Please cite FAR case 1998-018.

SUPPLEMENTARY INFORMATION:

A. Background

    This proposed rule amends FAR Parts 27 and 52 to add a new Subpart 
27.X, Government-Unique Trademarks and Service Marks, and to add a new 
clause, 52.227-XX, Rights in Government-Unique Marks. The rule provides 
policy guidance and a contract clause that establishes the process for 
a contractor seeking to assert rights in Government-unique marks. The 
rule creates a contractor notification process to allow agencies to 
consider both the Government's interests and a contractor's commercial 
interests in determining how to treat Government-unique marks. The 
guidance permits either the Government or a contractor to assert rights 
in a Government-unique mark and to seek trademark or service mark 
protection.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Councils do not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the rule only provides standardized procedures for the 
Government to preserve trademark and service mark rights to the 
Government. An Initial Regulatory Flexibility Analysis has, therefore, 
not been performed. We invite comments from small businesses and other 
interested parties. The Councils will consider comments from small 
entities concerning the affected FAR parts 27 and 52 in accordance with 
5 U.S.C. 610. Interested parties must submit such comments separately 
and should cite 5 U.S.C. 601, et seq. (FAR case 1998-018), in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) applies because the 
proposed rule contains information collection requirements. 
Accordingly, the FAR Secretariat has submitted a request for approval 
of a new information collection requirement concerning 9000-00XX, 
Trademarks for Government Products, to the Office of Management and 
Budget under 44 U.S.C. 3501, et seq.

Annual Reporting Burden

    Public reporting burden for this collection of information is 
estimated to average .25 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    The annual reporting burden is estimated as follows:
    Respondents: 75
    Responses per respondent: 1
    Total annual responses: 75
    Preparation hours per response: .25
    Total response burden hours: 18.75

D. Request for Comments Regarding Paperwork Burden

    Submit comments, including suggestions for reducing this burden, 
not later than October 9, 2001 to: FAR Desk Officer, OMB, Room 10102, 
NEOB, Washington, DC 20503, and a copy to the General Services 
Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, 
Washington, DC 20405.
    Public comments are particularly invited on: (a) Whether the 
proposed collection of information is necessary for the proper 
performance of the functions of the agency, including whether the 
information will have practical utility; (b) the accuracy of the 
estimate of the burden of the proposed information collection; (c) ways 
to enhance the quality, utility, and clarity of the information to be 
collected; and (d) ways to minimize the burden of the information 
collection on respondents, including the use of automated collection 
techniques or other forms of information technology.
    Requester may obtain a copy of the justification from the General 
Services Administration, FAR Secretariat (MVP), Room 4035, Washington, 
DC 20405, telephone (202) 501-4755. Please cite OMB Control Number 
9000-00XX, FAR Case 1998-018, Trademarks for Government Products, in 
all correspondence.

List of Subjects in 48 CFR parts 27 and 52

    Government procurement.

    Dated: August 3, 2001.
Al Matera,
Director, Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose that 48 CFR parts 27 and 52 
be amended as set forth below:
    1. The authority citation for 48 CFR parts 27 and 52 continues to 
read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 27--PATENTS, DATA, COPYRIGHTS, TRADEMARKS AND SERVICE MARKS

    2. Revise the heading of Part 27 as set forth above.
    3. Revise section 27.000 to read as follows:


27.000  Scope of part.

    This part prescribes policies, procedures, and contract clauses 
pertaining to patents and trademarks and service marks that are 
Government-unique, and directs agencies to develop

[[Page 42103]]

coverage for rights in data and copyrights.
    4. Add subpart 27.X, consisting of sections 27.X01 through 27.X05 
to read as follows:

Subpart 27.X--Government-Unique Trademarks and Service Marks

Sec.
27.X01   Definition.
27.X02   General.
27.X03   Policy.
27.X04   Protection of Government-unique marks.
27.X05   Contract clause.

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

27.X01  Definition.

    As used in this subpart--
    Government-unique mark means 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.


27.X02  General.

    (a) Trademarks are generally distinctive symbols, pictures, or 
words that distinguish and identify the origin of products.
    (b) 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.
    (c) Trademarks and service marks protect certain economic interests 
and goodwill. Parties that infringe or dilute trademarks and service 
marks may be liable under 15 U.S.C. 1114 and 1125.


27.X03  Policy.

    (a) 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.
    (b) The clause at 52.227-XX, Rights in Government-Unique Marks, 
requires the contractor to provide written notification of its 
intention to assert rights in a Government-unique mark. This 
notification process will allow the Government to consider both the 
Government's interests and a contractor's commercial interests in 
determining which party will register or asset rights in the mark.


27.X04  Protection of Government-unique marks.

    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.
    (a) The contractor may proceed to assert the rights or file the 
application if the Government does not object to the contractor's 
intended action within 120 days of receipt of the notification. 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.
    (b) The contractor may not proceed to assert the rights or file the 
application if the Government--
    (1) Chooses to assert its rights in the mark; or
    (2) Objects to the contractor's intended action. If the Government 
objects, the parties may negotiate conditions for contractor use of the 
Government-unique mark that may include, but are not limited to, the 
contractor agreeing to--
    (i) Grant licenses in a nondiscriminatory manner to third parties 
to use the Government-unique mark for reasonable terms and fees, as 
long as the third party meets minimum quality standards;
    (ii) Avoid use of the Government-unique mark in a manner that 
disparages the Government including the use of the mark by its 
licensees;
    (iii) Limit the use of the Government-unique mark to specific goods 
or services;
    (iv) Provide copies of any applications for registration, 
registrations, and renewals and notify the contracting officer prior to 
any abandonment of the Government-unique mark; and
    (v) Not charge for use of the Government-unique mark when used for 
the benefit of the Government.


27.X05  Contract clause.

    Insert the clause at 52.227-XX, Rights in Government-Unique Marks, 
in solicitations and contracts when either a rights in data clause 
(52.227-14, Rights in Data-General) or a patent clause (52.227-11, 
Patent Rights-Retention by the Contractor (Short Form), 52.227-12, 
Patent Rights-Retention by the Contractor (Long Form), or 52.227-13, 
Patent Rights-Acquisition by the Government) is present. The clause may 
also be used in any contract in which the contracting officer 
determines that a Government-unique mark may arise.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    5. Add section 52.227-XX to read as follows:


52.227-XX  Rights in Government-Unique Marks

    As prescribed in 27.X05, insert the following clause:

Rights in Government-Unique Marks (Date)

    (a) Government-unique mark, as used in this clause, means 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.
    (b) The Government has the right to assert rights in or register 
Government-unique marks and preclude others, including the 
Contractor, from using any Government-unique mark.
    (c) 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. The Contractor's notification shall be in 
writing and shall identify the Government-unique mark (including the 
word, name, symbol, or design), provide a statement as to its 
intended use(s) in commerce, and list the particular classes of 
goods or services in which registration will be sought.
    (d) The Contractor may proceed to assert rights in or file the 
application to register if the Government does not object to the 
Contractor's intended action within 120 days of receipt of the 
notification. 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.
    (e) The Contractor may not proceed to assert the rights or file 
the application if the Government--
    (1) Chooses to assert its rights in or register the mark; or
    (2) Objects to the Contractor's intended action. If the 
Government objects, the parties may negotiate conditions for 
Contractor use of the Government-unique mark.
    (f) Nothing contained in this clause--
    (1) Affects the Contractor's or the Government's rights in any 
marks other than Government-unique marks; or
    (2) Provides authorization or consent, express or implied, by 
the Government regarding the Contractor's use of any mark, including 
a Government-unique mark.

(End of clause)
[FR Doc. 01-19928 Filed 8-8-01; 8:45 am]
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