Fictional products don't violate trademark laws


#1

[Permalink]


Bugs with the new BBS system
#2

Warner Brothers should have just settled the case out of court by paying them off with a couple million fictional dollars. Heck, even a billion fictional dollars wouldn't make much of a dent in their annual operating budget.


#3

A check denominated in Bat Bucks, drawn on the Bank of Gotham. smiley


#4

Now I want to write a story where Pepsi and Coca-Cola are brands of motorcycles or something.


#5

I suppose this falls under "Trademark erosion," where just the use of the trademarked name in public speech is enough to cause issues, but the company that owns the trademark can't really do anything to legally prevent it. I can see why they'd want to sue, since they can actually lose their trademark, and all they can do is ask people not to "misuse" their trademark in speech and hope it sticks.


#6

Didn't an Australian brewing company get sued a few years back for marketing "Duff Beer"?


#7

Across the ditch, the brewery founded by Gavin Duff in Dunedin, NZ had to change it's name to McDuff's after threatened legal action which they couldn't afford to fight.

Lion Nathan brewed a knock-off that got them sued in the 90s.

And a Perth-based importer got a Cease-and-Desist when they imported unlicensed Duff from Germany. In a saner world, I'd liked to have seen the importer sat there with a Sharpie umlauting the U on each can, but sadly...


#8

OK... so what if The Dark Knight Rises had portrayed the (fictional) Clean Slate product as being defective?


#9

Then that would still not be a trademark infringement. The scenario you're describing bears on defamation.


#10

Or even as ineffective? Or that it is used by bad people? Or is a silly and unnecessary product? What are the legal lines for a creator to screw with a company's name or offer a negative opinion about their practices or products? I think it's mostly about creators being savvy about their own (future) business opportunities. The prospect of future hassle and closed doors is significant, but I don't think this kind of creative expression is legally actionable.

Paging Justice @Catgrin ?


#11

I assume this relates to the same principle which allowed spam, the unsolicited business mail, to not infringe upon Spam, the savory pork product. No real confusion there.

They're pretty different. Also went to court. Also did not end well for Hormel, parent of Spam.


#12

There is a great Donald Duck story (which, of course, I don't find right now) where Donald “steals” smoke from Scrooge's factories and sells it to South sea islanders who consider it a treat. In exchange for pirate gold.

Scrooge sues, of course, because he could have bottled the smoke himself.

The judge decides that he is entitled to compensation for his fictional losses and Donald has to pay with the sound the falling gold coins make.


#13

If 'Clean Slate" the words became slang/parlance for "wiping your hard drive" (an incredibly unlikely scenario as "Clean Slate" is rather clumsy, doesn't flow)

Then long before they lost or were threatened with losing their trademark they would have retired quite wealthy due to the benefit such recognition would drag to their product along the way.

Even now, tho they look seem to look the fools, millions of people who never heard of them will hear of them due to their actions, a sillylawsuit which may very well have been -them- associating the trademark they own with the Dark Knight franchise.

In this instance "trademark erosion", a slow & ponderous threat which is often profitable as hell, was never as much a threat as an opportunity. God forbid our trademark become a household name, heavens, what ever would we do!?


#14

That made me curious about the the big two appearing as major characters. It clearly wouldn't be a violation, but I hadn't seen it. So I went looking:

There's a character called "Ispep" here. So, that's been done.

Apparently Pepsi's been done as a character, too - and more than once! It happened in a book called Bones of the Moon. (Which is apparently a good read - someone was looking to reread it.)

By night, in dreams, she begins to visit a strange land called Rondua, where the sea is full of fish with mysterious names, where she and a huge, behatted dog escort a young boy named Pepsi across places such as the Northern Stroke, the Mountains of Coin and Brick, the Plain of Forgotten Machines.

Couldn't find one for Coca-Cola, but in The Genius Files:

Coke and Pepsi McDonald are a perfectly ordinary twin brother and sister on a cross-country RV trip with their parents. Except for one thing--they are also being chased by a bunch of psychos who are trying to kill them as they stop along the way at The National Yo Yo Museum, The Spam Museum, and various other offbeat tourist attractions.

(WTG Dan Gutman!!! That sounds like a great read!)

I've never read any of these - just hunted out of curiosity.


#15

Nope, it's a clear distinction. Fiction is fiction, and reality is reality.

The company in the movie did something that is expected to be fictional - and shows no direct competition with the existing company because it exists in no accessible market. They don't directly compete.


#16

@Tintera The Duff Beers are considered competitors because they mimic the appearance of "Duff Beer" in the show, and an actual licensed product (an energy drink in cans made to look like beer) is sold, but only in limited locations (like at Universal Studios by the ride). So in this case, a real product is competing with a real product - not a fictional product with a real product.

The problem the beers are having is that they're trying to link themselves to the fictional beer which is a licensed image - already used by a real licensed product.

Hi @jonbly and @andy_hilmer

The important thing is whether or not a distinction is made between the real company/product and the fictional one.

For example, @sockdoll was talking about writing a story where Pepsi and Coca-Cola were the names for motorcycles. If one wasn't as good as the other, say one got blown up in a race, it wouldn't matter. Motorcycles aren't soft drinks. For her to use their actual company logos in any artwork associated with her story or any derivative work (like a movie), she'd need their permission. The names aren't protected in the same way that the logos are.


#17

I read a variant of that story as an old folk tale, in which a pauper flavors his bread with the smoke from someone's chimney. The end was identical: the judge (or king?) decides that the plaintiff is fairly compensated by the sound of the pauper's coin.


#18

Here's that story.


#19

Uh oh, I think Donald Duck owes a 13th-century Turk some royalties.


#20

Sure, this is only one drop contributing to trademark erosion. (And yes, I'd say the lawsuit itself is doing more to associate the real product with the fictional one, thereby eroding it, than the film appearance by itself, especially since trademark erosion doesn't legally warrant a lawsuit.) Although it seems like there have been some trademarks that managed to become eroded so quickly the original product never made much money, but they'd be the exception rather than the rule.