The humble trademark

Trademarks are poor misunderstood things.

Way back when, trademarks were called hallmarks, makers’ marks, earmarks and brands.

That’s brand as in cows.

cowbrand

The idea of all of these marks is to uniquely distinguish the origin of goods and/or services. When you see one you are supposed to be assured that the goods or services come from the maker who owns the mark.

It’s also how you figure out who owns the cow. The word ‘brand’ literally comes from applying marks to animals to show ownership.

Some trademarks may also be copyrighted in addition to being trademarks, but trademarks operate under a different set of laws. Names of characters, products, books and films generally cannot be copyrighted – but they can be trademarked.

As I said, in almost every case that you see a trademark on a product, it marks that product as being made by the trademark owner, because trademarks are not subject to the same kinds of fair use as copyrights. There are, however, one or two exceptions.

Nominative fair use

Here’s the Second Life trademark, which is a US registered trademark of Linden Research Incorporated:

second-life-trademark1

Normally, I couldn’t show that to you at all, but the Lanham Act (which is the United States law that governs trademarks) allows me to do so under a principle called nominative fair use.

There are three tests for nominative fair use of a trademark in the USA:

  1. The product or service cannot be readily identified without using the trademark
  2. The user only uses so much of the mark as is necessary for the identification
  3. The user does nothing to suggest sponsorship or endorsement by the trademark holder. This applies even if the nominative use is commercial.

Addressing each test:

  1. I can’t actually make my point here without showing you a trademark, so the Lanham act and established legal precedent (New Kids on the Block vs News America Publishing Inc and Playboy Enterprises Inc vs Welles to name two) allows me to do so, just for that purpose.
  2. I’m using the whole mark, because I’m talking about the whole mark. I could chop it up a bit, but that would kind of spoil the educational point of the discussion. If I was using the mark to refer to Second Life itself, I’d have chopped it down some.
  3. This one’s easy. No reasonable person would imagine that I’m suggesting sponsorship or endorsement by Linden Research Inc in using the mark in this piece.

Comparative advertising

You can display someone else’s trademark as an identifier of their product or service when advertising it in a comparison with your own. I don’t have any legitimate comparative advertising to do here, so I’ll not display anyone’s trademark as an example of this.

Parody

This is potentially a parody:

cowbrand2 Why ‘potentially’?

Because in order to be a valid parody, one of two things has to be true:

1) The owner of the trademark thinks it is a valid parody, or…

2) They take you to court, and the judge decides that she or he thinks it is.

There’s no guarantees in a parody defense. Get a judge without a sense of humour or keen sense of fairness (or both) and you’ll wish you’d settled with the trademark owner before you started.

Granted, this particular image isn’t actually a very good parody. Thankfully, it doubles as nominative fair use, because I’m discussing the use of trademarks in parody. Lucky me, huh?

In short, a trademark is a signature stamp guaranteeing origin. When you see a trademark, it means that thing comes from the owner of that mark, and not from anyone else – though with the state of counterfeiting products being what it is these days, it is becoming harder and harder to really tell – many comic and cartoon characters are trademarks.

Don’t mistake a trademark for a copyright. They’re not the same under law.

Be careful with the trademarks of others. They’re an intangible property and rebranding anything (whether it is a product, a service or a cow) is an expensive, time-consuming and fraught process.

Trademarks and copyrights are (in part) as tightly protected as they are because it’s so easy to screw them up and to even accidentally infringe. An important part of enjoying your own rights is respecting the rights of others. Sometimes there’s a bit of effort involved.



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