We see trademarks all day, everyday, but we may not be aware of them. While trademark and copyright law share some similarities, they are somewhat different areas of the law. Recall from our discussion a few weeks ago, the copyright law generally protects an original literary, artistic, or creative work from being used by another for commercial purposes without the owner’s consent. So while copyright protects the work itself, trademark protects a “thing” associated with a work. A trademarked work will be represented either by the letters “TM” or the letter “R” in a circle appearing on the graphic/artwork or at the end of the slogan.
The Trademark Law
According to 15 U.S.C 1127, a trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods. In other words, a trademark protects the “things” that represent these literary, artistic, and creative works. These “things’ can be graphics/artwork, words, slogans, phrases, or anything designed to capture the attention of the consumer and/or represent a product. Examples of trademarks are: the McDonald’s Golden Arches and the Burger King Slogan, “Have It Your Way.” What other common graphics, artwork, phrases or slogans can you think of? The mark is probably on them too.
Counselor, What Does This Mean For Me?
If you are an artist and you create a trademark whether it is a graphic, a slogan, or phrase you are entitled to damages if someone makes money off of your trademarked work. For example, if you see your slogan on a t-shirt, in a song, or your artwork recreated in another’s painting, and you have not authorized this, you can claim damages against the perpetrator. To facilitate this process, you should always register your trademark with the United States Patent and Trademark Office, and of course seek legal counsel from The Hollywood Lawyer before you begin.
If you are not an artist and you using slogans, graphics/artwork, or phrases that you did not create, or do not own the rights to, for commercial purposes, beware. If you did not create it or own it, you don’t legally have the right to make money off of it. Yes, it happens all the time; you hear a catchy phrase from somewhere, and repeat it often thus making it a personal slogan. That likely won’t be problematic as long as you are not making money from the trademark. Keep in mind, the way the world works, the more money you make from a venture, the more likely you are to get sued from the venture.
Question for Discussion
Based on previous discussions and blog posts, do you think you can legally use a part of a trademarked work, add something to it, and use it as your own to make money? Why or Why not?
We will continue this discussion in next week’s post as well as examine some trademark court cases.
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