Re: Are drawings of products trademark infringements?
Come to think of it, the "copper top" is a fun example; think of the use of the phrase in The Matrix. Also common slang for a redheaded person in parts of the US. There's an argument that "copper" and black helps get across the "battery" meaning of a tiny icon. Is Duracell in danger of losing control of its trade dress? :-) Cheers, - Michael P. S. In a laptop battery monitoring app, I would give the battery a black outline and denote the charge level with, say, blue (above about 1/3 full) or red (under 1/3). And then mention color-blindness in the docs to say that the colors are chosen on purely functional grounds. Otherwise you're almost certain to duplicate somebody's trade dress. Then again, you could live dangerously and change it from Duracell to Brand X after determining that it doesn't report its charge level reliably. :)
Re: Are drawings of products trademark infringements?
Come to think of it, the "copper top" is a fun example; think of the use of the phrase in The Matrix. Also common slang for a redheaded person in parts of the US. There's an argument that "copper" and black helps get across the "battery" meaning of a tiny icon. Is Duracell in danger of losing control of its trade dress? :-) Cheers, - Michael P. S. In a laptop battery monitoring app, I would give the battery a black outline and denote the charge level with, say, blue (above about 1/3 full) or red (under 1/3). And then mention color-blindness in the docs to say that the colors are chosen on purely functional grounds. Otherwise you're almost certain to duplicate somebody's trade dress. Then again, you could live dangerously and change it from Duracell to Brand X after determining that it doesn't report its charge level reliably. :) -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of "unsubscribe". Trouble? Contact [EMAIL PROTECTED]
Re: Are drawings of products trademark infringements?
Generally, one can't succeed on a Lanham Act (US Federal trademark law) claim unless one can demonstrate (in the words of 15 USC 1114 1(a)) that the use is "likely to cause confusion, or to cause mistake, or to deceive". In the case of a famous mark, though, "trademark dilution" or "injury to business reputation" may also apply (the "blurring" or "tarnishment" of the trademark through use in otherwise unrelated or unwholesome settings respectively) irrespective of confusion and deception standards. See the commentary at http://www.goodwinprocter.com/publications/levy_i_02_04.pdf , and note that the intention of the FTDA was partly to implement international trademark treaties (see http://www.inta.org/dilution/ ). State law varies quite a bit, however, and not all states have adopted the equivalent model bill (http://www.inta.org/policy/mstb.html). So an outlet like CafePress is wise to have a broad ban, especially since a "novelty item" like a T-shirt or coffee mug is relatively likely to cause confusion with a promotional item from a trademark holder. Injunctive relief is common, but it's very unlikely that damages would be assessed (IANAL, etc.) against a distributor of clip art not deliberately intended to contribute to infringement by its recipients. Therefore I'd steer clear of combining product names and images (e. g., "HUMMER" together with a bloatmobile), but a drawing labeled "mobile phone" is probably fine even if it looks a lot like a Nokia's "trade dress". I don't think I'd use Duracell's copper top, though. Cheers, - Michael P. S. A drawing of Calvin isn't necessarily a trademark, but it is a copyrighted character -- what Don Quixote would have been if Spain had had today's copyright law in Cervantes' day. "Calvin and Hobbes" is a trademark.
Re: Are drawings of products trademark infringements?
On Mon, Jan 10, 2005 at 09:08:09PM -0500, William Ballard wrote: > It clearly states that some elements of an illustration are > "protectable." A young boy with dark hair and eyeglasses is > not protectable, but a young boy with eyeglasses, similar facial > featurs, style and color of hair *clearly intending to be Harry > Potter* is a violation. The issue isn't whether these images are protectable, the issue is whether our distribution of them would constitute infringement. Which is a very different question. A newspaper can run a story about trademarked products (cars, food, movies, etc.) and this is fine, because they're not delivering a competing product under those trademarks. If you think of trademark law as a form of truth-in-advertising law, you'll be a lot closer to accurate than if you think that the only issue is whether or not some particular item is protectable by trademark. -- Raul
Re: Are drawings of products trademark infringements?
This bit concerns what CafePress will and will not accept: Examples of Prohibited Content Because of intellectual property laws, CafePress.com has certain rules regarding the types of merchandise that you can make and sell through its service. For example: * NO UNOFFICIAL MERCHANDISE * NO use of names, logos, pictures or other intellectual property of musical groups or musical artists. For example, you cannot make Britney Spears merchandise simply because you run a fan-based Britney Spears website or just because you downloaded her image from an internet website. You also cannot modify the name or other intellectual property of a musical group and avoid infringement, (e.g., using Metalika instead of Metallica). * NO use of names, logos, pictures, or other intellectual property of sports teams, colleges/universities, clubs, or organizations such as the Los Angeles Lakers, Harvard University, or The Boy Scouts. Again, modifications do not avoid infringement. * NO photos, logos, caricatures, or other artwork depicting celebrities, such as Michael Jackson or Madonna, or other third parties. Just because you take a photograph of a celebrity does not give you the right to use that photograph on merchandise, even if you digitally manipulate the photograph. * NO use of trademarks, names, or logos of companies. For example, you cannot use the name of a company such as Nike®, a company logo such as the Nike "swoosh" trademark, or brand name such as Coca Cola®, or a modified version of a trademark, (e.g., "Just Did It"). * NO pictures or photographs of products (such as automobiles or toys). Even if you own a product, trademark laws still prohibit you from selling merchandise featuring pictures of it. For example, you cannot take a picture of your car and then sell t-shirts or mugs with that picture.
Re: Are drawings of products trademark infringements?
Generally, one can't succeed on a Lanham Act (US Federal trademark law) claim unless one can demonstrate (in the words of 15 USC 1114 1(a)) that the use is "likely to cause confusion, or to cause mistake, or to deceive". In the case of a famous mark, though, "trademark dilution" or "injury to business reputation" may also apply (the "blurring" or "tarnishment" of the trademark through use in otherwise unrelated or unwholesome settings respectively) irrespective of confusion and deception standards. See the commentary at http://www.goodwinprocter.com/publications/levy_i_02_04.pdf , and note that the intention of the FTDA was partly to implement international trademark treaties (see http://www.inta.org/dilution/ ). State law varies quite a bit, however, and not all states have adopted the equivalent model bill (http://www.inta.org/policy/mstb.html). So an outlet like CafePress is wise to have a broad ban, especially since a "novelty item" like a T-shirt or coffee mug is relatively likely to cause confusion with a promotional item from a trademark holder. Injunctive relief is common, but it's very unlikely that damages would be assessed (IANAL, etc.) against a distributor of clip art not deliberately intended to contribute to infringement by its recipients. Therefore I'd steer clear of combining product names and images (e. g., "HUMMER" together with a bloatmobile), but a drawing labeled "mobile phone" is probably fine even if it looks a lot like a Nokia's "trade dress". I don't think I'd use Duracell's copper top, though. Cheers, - Michael P. S. A drawing of Calvin isn't necessarily a trademark, but it is a copyrighted character -- what Don Quixote would have been if Spain had had today's copyright law in Cervantes' day. "Calvin and Hobbes" is a trademark. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of "unsubscribe". Trouble? Contact [EMAIL PROTECTED]
Re: Are drawings of products trademark infringements?
On Mon, Jan 10, 2005 at 09:08:09PM -0500, William Ballard wrote: > It clearly states that some elements of an illustration are > "protectable." A young boy with dark hair and eyeglasses is > not protectable, but a young boy with eyeglasses, similar facial > featurs, style and color of hair *clearly intending to be Harry > Potter* is a violation. The issue isn't whether these images are protectable, the issue is whether our distribution of them would constitute infringement. Which is a very different question. A newspaper can run a story about trademarked products (cars, food, movies, etc.) and this is fine, because they're not delivering a competing product under those trademarks. If you think of trademark law as a form of truth-in-advertising law, you'll be a lot closer to accurate than if you think that the only issue is whether or not some particular item is protectable by trademark. -- Raul -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of "unsubscribe". Trouble? Contact [EMAIL PROTECTED]
Re: Are drawings of products trademark infringements?
This bit concerns what CafePress will and will not accept: Examples of Prohibited Content Because of intellectual property laws, CafePress.com has certain rules regarding the types of merchandise that you can make and sell through its service. For example: * NO UNOFFICIAL MERCHANDISE * NO use of names, logos, pictures or other intellectual property of musical groups or musical artists. For example, you cannot make Britney Spears merchandise simply because you run a fan-based Britney Spears website or just because you downloaded her image from an internet website. You also cannot modify the name or other intellectual property of a musical group and avoid infringement, (e.g., using Metalika instead of Metallica). * NO use of names, logos, pictures, or other intellectual property of sports teams, colleges/universities, clubs, or organizations such as the Los Angeles Lakers, Harvard University, or The Boy Scouts. Again, modifications do not avoid infringement. * NO photos, logos, caricatures, or other artwork depicting celebrities, such as Michael Jackson or Madonna, or other third parties. Just because you take a photograph of a celebrity does not give you the right to use that photograph on merchandise, even if you digitally manipulate the photograph. * NO use of trademarks, names, or logos of companies. For example, you cannot use the name of a company such as Nike®, a company logo such as the Nike "swoosh" trademark, or brand name such as Coca Cola®, or a modified version of a trademark, (e.g., "Just Did It"). * NO pictures or photographs of products (such as automobiles or toys). Even if you own a product, trademark laws still prohibit you from selling merchandise featuring pictures of it. For example, you cannot take a picture of your car and then sell t-shirts or mugs with that picture. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of "unsubscribe". Trouble? Contact [EMAIL PROTECTED]
