What constitutes trademark infringement?
Excerpted from: http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm
If a party owns the rights to a particular trademark, that party can sue subsequent parties for trademark infringement. 15 U.S.C. §§ 1114, 1125. The standard is “likelihood of confusion.” To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant’s intent. Polaroid Corp. v. Polarad Elect. Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820 (1961).
So, for example, the use of an identical mark on the same product would clearly constitute infringement. If I manufacture and sell computers using the mark “Apple,” my use of that mark will likely cause confusion among consumers, since they may be misled into thinking that the computers are made by Apple Computer, Inc. Using a very similar mark on the same product may also give rise to a claim of infringement, if the marks are close enough in sound, appearance, or meaning so as to cause confusion. So, for example, “Applet” computers may be off-limits; perhaps also “Apricot.” On the other end of the spectrum, using the same term on a completely unrelated product will not likely give rise to an infringement claim. Thus, Apple Computer and Apple Records can peacefully co-exist, since consumers are not likely to think that the computers are being made by the record company, or vice versa.
Between the two ends of the spectrum lie many close cases, in which the courts will apply the factors listed above. So, for example, where the marks are similar and the products are also similar, it will be difficult to determine whether consumer confusion is likely. In one case, the owners of the mark “Slickcraft” used the mark in connection with the sale of boats used for general family recreation. They brought an infringement action against a company that used the mark “Sleekcraft” in connection with the sale of high-speed performance boats. Because the two types of boats served substantially different markets, the court concluded that the products were related but not identical. However, after examining many of the factors listed above, the court concluded that the use of Sleekcraft was likely to cause confusion among consumers. AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979).
It was only a matter of time before the copycats came out of the woodwork and started making their own “fake newspapers” and “fake newspaper headlines”, blank (Everything I Know About) books and the like. To a degree, we welcome them. They help to bring the concept of fake newspapers and other gags into the public consciousness. And at the same time, they help our products shine by giving the consumer something to compare. We encourage you to shop around. If you can find a more authentic product, better customer support, at a more attractive price—BUY IT.
However, if you are one of the growing numbers of shameless copycats on the Internet, beware. We won’t hesitate to prosecute you. We’re recently informed, for example, that an upstart little company has offered a number of products which are word-for-word copies of ours. They’ve even copied our “Everything I Know About…” series blank books, right down to the format of the cover (since posting this page they’ve changed to a hardcover format and dropped the cover layout). That company also used to advertise that they had been in business 20 years—then, after this page was posted, they upped that to 50 years. (Not bad for a 44-year-old owner!). Now that same company says it’s been making fake newspapers since 1975. So which is it? Yet another copycat company has exactly copied our fake news article depicting the president calling a birthday guy or gal to say hello (C-106). This kind of dishonor and cheesy pilfering goes on and on… Another new company offers a one-sided letter-size “fake newspaper” for the bargain price of $45. Another yokel now offers “fake newspaper franchises” (good bloody grief!). This is a labor of love for God’s sake. There is no substantial money to be made in fake newspapers. Never has been, never will be. Our other business investments support our fake newspaper habit — that’s about the size of it. To the copycats we say: get a life, think up your own ideas, and enjoy a sense of honor for a change.
While it may be time-consuming to enforce copyright on a single phrase, you can easily protect your work and recover compensation when the infringement involves the reprehensible duplication of a complete product. Even in cases where the offense is not quite…..actionable in court, it’s still despicable, outrageous and dishonest. Why would someone or some company utterly steal someone else’s work? It seems to us this is a clear and blatant advertisement, a message to the customer which says about the offending company: “Our own ideas and products are junk; therefore we steal from others, because we basically have no honor whatsoever, and if you’ll turn around for just a second, we’ll screw you too.”
We’re disgusted by the copycat mentality, the copycatters should be embarrassed for themselves, and the potential victim customer should be wary of the dubious morality of such companies. For instance, we started in 1982, going online in 1996. Since then we’ve always been the number-one Google search result. We’re clearly, unarguably the biggest and best fake newspaper supplier in the world. Recently, however, a little company has started up with a ridiculous product, claiming “they” are the only fake newspaper supplier in the world. Even if we didn’t exist, there are a plethora of fake newspaper suppliers in existence today–none of which provide a believable product, but that’s beside the point. We know this company has been aware of us since they started in 2003 because they’ve stolen our product descriptions word for word, simply cutting and pasting them into their site! We log their accesses to our servers almost every day, checking our products to look for new ideas they can pilfer and call their own. Any company’s claim of being “the only” fake newspaper maker is simply an attempt to trick the customer into ordering from them (quickly, so they don’t have time to shop around). It’s called lying, it borders on the legal definition of fraud, and a company which lies about something is so easily proven false will lie about anything. Usually, such companies’ “testimonials” are pure fiction, and their claim of “sales in [so many] countries” is a blatant fabrication. They may have gone into their server logs and noted that they had visitors from so many countries—but we promise, they don’t have sales to those countries. Why lie when the lies are so transparent? It only makes the company look foolish and suspect. These dishonest companies don’t seem to understand that if they continue picking and pecking and nipping at the larger companies, the larger companies will sooner or later turn around and bite them. If this kind of smarm and dishonesty rubs you the wrong way, as it does us and most other honorable people around the world, we suggest the customer exercise care in choosing their online vendors. We monitor these companies, and we continue to build a file on each of them which will one day serve us well in copyright infringement suits against them. Still, we can’t help but wonder why these outfits can’t simply come up with their own ideas, so they don’t have to constantly worry about which lies they’ve told to whom, and so they can sleep at night without worrying about the process server showing up at their doors in the morning. The level of deceit frankly boggles the mind.
We see original, innovative products on the Internet every day, perhaps half a dozen times per day, that are cool, that are eminently saleable, that are fun, unusual, creative, and which “we” could probably do better, print cheaper and market more effectively. But they are other people’s ideas. And we don’t touch them. While it would be technically legal to do so, even to effectively steal those products right from under the noses of the original creators, we’d be scum if we did so. We have a real and serious problem with those who do that to us.
Is there a difference between this person or company, and the mugger or garden-variety apartment thief? What kind of human worm feels somehow justified in offering someone else’s product for sale! But in the end, it doesn’t matter if we can understand this behavior or not, because there are relatively clear-cut laws to protect us. If we’re forced to be put to the trouble and expense of taking legal action, such action will involve the recovery of, among other damages, three times the revenue this company has earned by selling our products.
This kind of thing brings to mind the philosophy of the Chinese government when dealing with scum-bags: Shoot ’em in the head and send a bill to their families for the price of the bullet. People of this caliber deserve no better and, frankly, we don’t have room for ’em on this planet.
Sorry folks, you gotta think up your own products. Unless you live in Hollywood, you can’t simply leech off the creativity and success of others. That’s just common human decency. And it’s the law.
TrixiePixGraphics
More About Copyright:
(Kudos to the sender)
What is a Copyright? A copyright protects original work of authorship such as a picture, drawing, graphics, software program, written work, sculpture, song, or photograph. Copyright law prevents you from copying another’s copyrighted work for any purpose, making things based on the copyrighted work, distributing copies of the copyrighted work, publicly performing the copyrighted work, displaying the copyrighted work, and in the case of sound recordings, transmitting the recording over the internet or in another media. In a nutshell, copyright law protects the expression of one’s idea.
What is a Trademark? A trademark is a word, name, symbol or other devices that identifies the goods or services of a given person or company and distinguishes them from the goods or services of other persons or companies. Trademark law prevents you from using another’s trademark (such as the name of a musical group or artist) on your merchandise because such use will cause consumers to believe that the trademark owner has made, approved of, or endorsed your merchandise. In short, a trademark is someone’s brand.
What is Right of Publicity? The Right of Publicity makes it unlawful to use another’s identity for commercial advantage without permission. A person’s “identity” includes, for example, his look, voice, name, nickname, professional name, and other distinctive characteristics. For example, the Right of Publicity prohibits you using the picture of a celebrity without authorization on your merchandise.
Frequently Asked Questions If it does not have a copyright notice, it is ok to use. NOT REALLY. Almost all works are protected by copyright, even if they do not have a copyright notice. Therefore, you should assume that you need to obtain permission to use any material that you did not create.
It’s on the internet, so it is ok to use it. FALSE. Simply because an image is found on the Net does not mean that it is in the public domain. Unless the author of the work has explicitly stated that his work is “public domain” or that the copyright has expired because the work is very old, then you must assume it is not. Further, a person who posts an image on the Net and claims that you are free to use may not have had the right to post the image in the first place. Thus, your use of the image may violate the rights of the actual copyright owner.
It is Fair Use. PROBABLY NOT. Fair use of a work for the purposes of merchandise sale is treated very differently than for informative purposes or for commentary. In general, a claim of fair use of a work when it is used on merchandise [may] not hold up in court, especially if the merchandise is sold for profit.
I took the photo so I can use it however I want. NOT EXACTLY. Simply taking a photo of a person, company, band, logo or the like does not afford you the right to sell merchandise featuring that photograph.
I based my artwork on the artwork of a third party, so that is ok. FALSE. Works that are derived from a previous work of another violate the rights of the owner of the previous work. Therefore, if you are creating an image that is based on the work of someone else, you need to obtain permission from the original creator prior to your use of your work.
It’s a parody, so it is ok. FALSE. Parody used for informative purposes is treated very differently from parody used for the sale of merchandise. Parody as a defense to infringement claims based on merchandise sale [may] not hold up in court.
The First Amendment protects my freedom of speech so I can use whatever images I want. FALSE. Freedom of speech is a constitutional protection that guarantees that the government will not oppress your right to self-expression. It does not give you the right to use the intellectual property of another to sell or distribute merchandise.
Sources for Information For additional information on Copyrights, please visit the United States Copyright Office Library of Congress at http://www.copyright.gov. For additional information on Trademarks, please visit the United States Patent and Trademark Office at http://www.uspto.gov. For general questions about Intellectual Property Rights (copyrights/trademarks), please visit the Nolo Law Center at http://www.nolo.com.
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