By Robert M. Hausman
A review of the rules that must be followed when building a firearm are reviewed in a recent letter from the Bureau of Alcohol, Tobacco, Firearms & Explosives’ Firearms Technology Branch Chief, Sterling Nixon.
The details were contained within a response the Technology Branch recently made to an individual posing the question of whether or not it is legal to assemble a firearm from commercially available parts kits.
ATF’s response began by noting that the provisions of the Gun Control Act (GCA) of 1968, 18 U.S.C. Chapter 44 provide that an unlicensed individual may make a “firearm” as defined in the GCA for his own personal use, but not for sale or distribution.
The GCA, 18 U.S.C. § 921(a)(3), defines the term “firearm” to include the following: “…(A) any weapon (including a starter gun) which will or is designed to or may be readily converted to expel a projectile by the action of an explosive: (B) the frame or receiver of any such weapon; (C) any firearm muffler or silencer; or (D) any destructive device. Such term does not include an antique firearm.”
In addition, the National Firearms Act (NFA), 26 U.S.C. § 5845(b), defines the term “machine gun” as: “…any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. This term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.”
Finally, the GCA, 18 U.S.C. § 922(r), specifically states the following: “It shall be unlawful for any person to assemble from imported parts any semiautomatic rifle or any shotgun which is identical to any rifle or shotgun prohibited from importation under the…(GCA) …Section 925(d)(3)…as not being particularly suitable for or readily adaptable to sporting purposes…”
Also, 27 C.F.R. § 478.39 states: “…(a) No person shall assemble a semiautomatic rifle or any shotgun using more than 10 of the imported parts listed in paragraph (c) of this section if the assembled firearm is prohibited from importation under section 925(d)(3) as not being particularly suitable for or readily adaptable to sporting purposes… (b) The provisions of this section shall not apply to: (1) The assembly of such rifle or shotgun for sale or distribution by a licensed manufacturer to the United States or any department or agency thereof or to any state or any department, agency, or political subdivision thereof; or (2) The assembly of such rifle or shotgun for the purposes of testing or experimentation authorized by the Director (of ATF) under the provisions of [§478.15 (formerly 178.151)]; or (3) The repair of any rifle or shotgun which had been imported into or assembled in the United States prior to November 30, 1990, or the replacement of any part of such firearm. (c) For purposes of this section, the term imported parts (tabulated below) are:
- Frames, receivers, receiver castings, forgings, or castings.
- Barrels
- Barrel extensions
- Mounting blocks (trunnions)
- Muzzle attachments
- Bolts
- Bolt carriers
- Operating rods
- Gas pistons
- Trigger housings
- Triggers
- Hammers
- Sears
- Disconnectors
- Buttstocks
- Pistol grips
- Forearms, handguards
- Magazine bodies
- Followers
- Floor plates
1989 Gun Ban
As a result of a 1989 study by the U.S. Treasury Department regarding the importability of certain firearms, an import ban was placed on military-style firearms. This ban included not only military-type firearms, but also extended to firearms with certain features that were considered to be “nonsporting.”
Among such nonsporting features were the ability to accept a detachable magazine; folding/telescoping stocks; separate pistol grips; and the ability to accept a bayonet, flash suppressors, bipods, grenade launchers, and night sights.
Generally, an acceptable (to ATF) semiautomatic copy of a machine gun is one that has been significantly redesigned. The receiver must be incapable of accepting the original fire-control components that are designed to permit full automatic fire. The method of operation should employ a closed-bolt firing design that incorporates an inertia-type firing pin within the bolt assembly.
Further, an acceptably redesigned semiautomatic copy of a nonsporting firearm must be limited to using less than 10 of the imported parts listed in 27 CFR § 478.39(c). Otherwise, it is considered to be assembled into a nonsporting configuration per the provisions of 18 U.S.C. 925(d)(3) and is thus a violation of § 922(r).
Individuals manufacturing sporting-type firearms for their own use need not hold Federal Firearms Licenses. However, ATF suggests that the manufacturer at least identify the firearm with a serial number as a safeguard in the event that the firearm is lost or stolen. Also, the firearm must be identified as required in 27 CFR 478.92 if it is sold or otherwise lawfully transferred in the future.
The rules (contained within 27 CFR 478.92) say an unlicensed individual who intends to sell or otherwise lawfully transfer a self-made firearm are thus the same as for a licensed domestic (U.S.) manufacturer, which are as thus: A licensed manufacturer or licensed importer of firearms, must legibly identify each firearm manufactured or imported as follows: (i) By engraving, casting, stamping (impressing), or otherwise conspicuously placing or causing to be engraved, cast, stamped (impressed) or placed on the frame or receiver thereof an individual serial number. The serial number must be placed in a manner not susceptible of being readily obliterated, altered, or removed, and must not duplicate any serial number placed by you on any other firearm.
For firearms manufactured or imported on and after January 30, 2002, the engraving, casting, or stamping (impressing) of the serial number must be to a minimum depth of .003 inch and in a print size no smaller than 1/16-inch; and (ii) By engraving, casting, stamping (impressing), or otherwise conspicuously placing or causing to be engraved, cast, stamped (impressed) or placed on the frame, receiver, or barrel thereof certain additional information. This information must be placed in a manner not susceptible of being readily obliterated, altered, or removed. For firearms manufactured or imported on and after January 30, 2002, the engraving, casting, or stamping (impressing) of this information must be to a minimum depth of .003 inch.
The additional information includes: (A) The model, if such designation has been made; (B) The caliber or gauge; (C) Your name (or recognized abbreviation) and also, when applicable, the name of the foreign manufacturer; (D) In the case of a domestically made firearm, the city and state (or recognized abbreviation thereof) where you as the manufacturer maintain your place of business.
NASR Seeking Info on ATF Inspector Problems
The National Association of Firearms Retailers (NAFR), a division of the National Shooting Sports Foundation (NSSF), is collecting information on problems experienced by American retailers with inspectors from the Bureau of Alcohol, Tobacco, Firearms & Explosives.
NSSF/NAFR says they want to bring legitimate problems and abuses to the attention of ATF management to get them corrected. The contact at NSSF/NAFR is Randy Clark, director of retail partnerships. Tel: (203) 426-1320 or rclark@nssf.org.
Bushmaster Wins Major Trademark Case vs. Colt
In a December 6, 2005 decision, the United States District Court in Maine granted summary judgment for Bushmaster in a trademark case brought by Colt Defense, LLC.
In the case, Colt accused Bushmaster of infringing the “M4” trademark and the trade dress of the M4, both of which Colt claimed it owned to the exclusion of others in the industry. In addition to denying Colt’s infringement claims, the Court granted judgment for Bushmaster on its claim for cancellation of Colt’s federal trademark registration for the “M4” trademark.
“Colt has for years made all sorts of claims as to rights it asserted that it said belonged only to it,” commented Richard Dyke, Chairman and principal shareholder of Bushmaster Firearms. “And this case clearly shows, Colt has been overstating its rights. In this case, the Court determined that the right to use the M4 term and to sell firearms that look like the M4 type, are rights that belong to the industry, not just Colt.”
The Court’s order affirmed a prior recommended decision of a U.S. Magistrate Judge in the case. Among other things, the Magistrate’s decision held:
- That the M4 is a generic term which merely describes a type of firearm, and is not an identifier of Colt as a sole source for such firearms. In doing so, the decision noted that more than a dozen firearm manufacturers other than Colt have used the term M4 for years to refer to military-style carbines with collapsible buttstocks and shortened barrels. Since the M4 term is generic, the court granted judgment for Bushmaster that Colt’s federal trademark registration for the M4 should be cancelled.
- Dismissed Colt’s claim for infringement of M4 trade dress both because the alleged trade dress is primarily non-functional and because Colt could not establish that the buying public associated the look of the M4 only with Colt.
- Dismissed Colt’s claims for infringement of the terms M16, CAR, MATCH TARGET, AR-15 and COMMANDO because it concluded that there was no likelihood of confusion among purchasers as to the source of Bushmaster’s products.
In the action, Colt had alleged that it is the owner of the common-law trademarks “M16” and “CAR” and the federally registered trademarks “MATCH TARGET” (registration no. 2,003,594), “AR-15” (Registration No. 825,581), “COLT AR-15” (Registration No. 827,453), “COLT AR-15 and design” (Registration No. 830,862), “COMMANDO” (Registration No. 2,095,131), and “M4” (Registration No. 2,734,001).
Colt asserted six counts against Bushmaster, alleging federal trademark infringement, false designation of origin, trade-dress infringement, false advertising, common-law trademark infringement and unfair competition, and federal trademark dilution of the M4 mark.
Background
The AR-15 (ArmaLite Rifle model 15) was developed by Eugene Stoner and others while working at the ArmaLite Division of Fairchild Engine and Airplane Corporation. In 1959, Colt bought the right to develop and build the AR-15 from ArmaLite. Colt later sold a variant of the AR-15 to the U.S. Air Force, which designated the firearm the M16. Colt also sold a variant of the AR-15 to the U.S. Army which designated it the XM16E1. The term “X” in the rifle’s name means “experimental.”
In 1967, the Army officially type-classified the firearm as standard “U.S. Rifle, 5.56mm, M16A1.” In the early 1980s, the U.S. government decided it needed a more compact version of the M16. Colt designed and built the prototype for the Colt M4 carbine in the mid-1980s under a contract with the Army dated June 12, 1985. In April 1990, Bushmaster and the Army entered into a contract pursuant to which Bushmaster provided 465 carbines having “all the physical and technical characteristics of the M4 Carbine.” In 1994, the U.S. government adopted a general-purpose military carbine and designated it the M4. The M4 carbine shares about 80% parts commonality with the M16 rifle.
In the mid-1990s a dispute arose between Colt and the U.S. government concerning the scope of, and the government’s discharge of its responsibilities under, a technical data licensing agreement that Colt and the U.S. military had executed in 1967 for the M16 rifle. Colt claimed that the government had breached the 1967 license agreement by failing to protect Colt’s proprietary data adequately against improper disclosure to other potential suppliers. The matter was settled by the execution of an addendum which recognized Colt’s claim to proprietary data rights in its M4 carbine and components.
The military specifications and military standards into which Colt’s M4 Technical Data Package have been incorporated consist of more than 200 rigorous standards covering inspection, tolerances, targeting, endurance and interchangeability of parts. These standards are enforced by a U.S. government inspector who maintains an office at Colt’s factory and by Colt’s own inspectors. The M4 carbine Technical Data Package is proprietary to Colt, and the U.S. government has designated Colt as its “sole source” supplier of M4 carbines.
In 1999, FN Manufacturing, Inc., a supplier of M16A2 series rifles to the U.S. government (after winning a price competition with Colt) challenged the government’s decision to proceed with a sole-source procurement of M4 carbines from Colt. On Aug. 9, 1999, the U.S. Court of Federal Claims upheld the legality of the M4 Addendum, and FN’s challenge was dismissed.
The court noted that Bushmaster has been selling AR-15/M16/M4-type firearms and firearms parts in direct competition with Colt for more than 25 years. Further, it found that Bushmaster is the number-one producer of AR-15-type rifles and carbines in the U.S. commercial and law-enforcement markets.
Further, in response to Colt’s claim that Bushmaster’s products were causing “consumer confusion” in telling the difference between Colt and Bushmaster products, the court found that Bushmaster displayed its name prominently – i.e. on its brochures, website, and that almost every product displayed in its brochures is preceded by the name “Bushmaster”, as in Bushmaster AK Carbines, etc. Colt, however, denied this assertion and claimed that the markings of its name that Bushmaster puts on its firearms are not prominent. The court found the prominence of Bushmasters markings “was a matter of opinion.”
The author publishes two of the small arms industry’s most widely read trade newsletters. The International Firearms Trade covers the world firearms scene, and The New Firearms Business covers the domestic market. He also offers FFL-mailing lists to firms interested in direct marketing efforts to the industry. He may be reached at: FirearmsB@aol.com.
| This article first appeared in Small Arms Review V9N9 (June 2006) |
