Can You Add the OEM’s Part Number to a PMA Part?

Recently, I was asked whether it is permissible for a PMA part design to include both the PMA part marking required by part 45, and also a marking for the production-certificate-part-number that the PMA part replaces. For purposes of this article, I will assume the following facts:

• • The PMA applicant plans to tender to the FAA an application for PMA design that will include the production-certificate-part-number as well as the PMA part number;
  • The PMA applicant wishes to mark their part with the TC/PC-holder’s part number to clarify the nature of the FAA-approved replacement relationship;
  • The PMA application is tendered under a test-and-computation approach; and
  • The PMA applicant has no license to use the TC/PC-holder’s information.

This article is limited to these factual assumptions, and may not readily apply to other fact patterns.  There are two key issues that should be discussed: FAA compliance, and false-designation-related concerns.

FAA Marking Requirements

The FAA marking regulations generally require a PMA part to be marked with:

1. 1. the PMA holder’s name, trademark, symbol, or other FAA-approved identification;
   2. the part number; and
   3. the letters “FAA-PMA”.  14 C.F.R. 45.15(a).

Thus, except as allowed by the regulations, the PMA design must include the PMA part number (and the other required information). The FAA regulations generally do not impose restrictions on what other markings may be applied, commercially, to a PMA part.

14 C.F.R. Part 3. forbids representations about a part’s quality that might be misleading or false, but that regulation provides a safe harbor for airworthy parts.  14 C.F.R. 3.5(d).  The purpose of the safe harbor is to keep the FAA out of the sphere of regulating garden-variety fraud when aviation safety is not implicated, but to permit it to regulate misleading statements that could affect airworthiness.  Thus, an FAA-approved PMA part is unlikely to violate these regulations by merely adding additional commercial information.

Can the FAA Deny A PMA with Such a Marking?

The FAA must approve a design, and thus the FAA represents a gatekeeper to the PMA applicant’s ability to include an additional marking. Nonetheless, the law likely prevents the FAA from refusing to permit a TC/PC-holder’s part number on the PMA part.

The FAA is subject to the Paperwork Reduction Act. One feature of the Act is that an agency may not punish a member of the public (including by denial of a privilege), for any record-related act or omission unless the record-related act or omission is the subject of an OMB control number. Typically, the FAA seeks OMB control numbers as part of the regulatory process in support of information-collection activities. The FAA does not have a rule requiring nor forbidding the application of a PMA marking for the production-certificate-part-number that is replaced.  Consequently, the FAA does not have an OMB-control number for such a marking.  Because there is no such rule nor is there an OMB control number for such a rule, it is possible that a refusal to approve a PMA design on the grounds that the PMA design bears a marking for the production-certificate-part-number that is replaced, might reflect a violation by the FAA of the Paperwork Reduction Act. Thus, the FAA may, in some circumstances, be forbidden from refusing such an additional marking.

In practice, I have seen many PMA parts that also bear other part numbers. This includes situations where the PMA part producer also is a supplier to a production certificate holder, and supplies articles from the same production quality system both to the production certificate holder (as a supplier) and to the marketplace (as a PMA holder).

What About False Designations?

The fact that the FAA cannot prevent the marking we are discussing, does not mean that there is no possible legal jeopardy associated with the proposed marking. It simply means that the potential legal jeopardy associated with the proposed marking may fall outside of the FAA’s direct power to act.

The Lanham Act forbids the use in commerce of certain marks, if the use of such a mark would cause certain types of confusion, deceit or mistake. One of the things that is reached by the Lanham Act is confusion, deceit or mistake concerning a source designated by the mark (including confusion, deceit or mistake concerning the relationship with the source designated by the mark). Case law has made it clear that the FAA may issue a PMA approval for an article that violates the Lanham Act, and likewise makes it clear that the issue of the PMA does not insulate the PMA holder from Lanham Act liability (because the Lanham Act is outside of the FAA’s analysis when considering and issuing a PMA).  Note that there are also state laws that are analogous to the Lanham Act, as well as non_US laws designed to provide comparable protection to trademark holders.

One threshold question might be whether the TC/PC holder’s part number is a protected mark.  It might not be.  But for purposes of this discussion, we shall assume that the TC/PC-holder’s part-number is a protected mark. This assumption may not be correct in all, or even in most cases! Nonetheless it is a useful assumption for analyzing the best way to protect against possible intellectual property infringement.

If the marking of the production-certificate-part-number could cause someone to believe that the PMA part in question was actually the TC/PC-holder’s part, then this might reflect the sort of confusion, deceit or mistake (concerning origin) that the Lanham Act is meant to prevent. Thus, a marking that uses the TC/PC-holder’s part number with no context could cause confusion, deceit or mistake.

Even if we assume that the TC/PC-holder’s part number is a protected mark under the Lanham Act, using it in a manner that does not cause confusion, deceit or mistake is still permissible.  I would advise a company to present the TC/PC-holder’s part number in a context that clarifies the intent and relationship.  For example, contextualizing the TC/PC-holder’s part number as follows (to clarify the relationship) may mitigate the danger that an installer might believe that this is the TC/PC-holder’s part, and it clarifies that this an FAA-approved replacement part:

“FAA-PMA Part No. pppp-pppppp-ppp.  This is an FAA-approved replacement part for TC Holder Part No. xxxx-xxxxxx-xxxx”

Note that this proposed marking uses the TC Holder’s name (which is almost certainly a protected trademark).  That is OK!  The proposal does not imply any relationship between the PMA holder and the TC/PC holder – neither authorization, nor affiliation, nor endorsement, nor any other connection.  Such an implication could create a use in commerce of the TC/PC holder’s mark, but with no such implication or representation, the use in commerce for trusthful informational purposes is likely to be considered a “fair use” that is permitted under the law.

This should effectively mitigate the danger of confusion, deceit or mistake subject to the Lanham Act.  Don’t forget that this sample marking is missing the PMA holder’s name, trademark, symbol, or other FAA-approved identification – that is a required part of the marking under Part 45, and it should provide even greater clarity about source.