You all know those t-shirts that use the “golden arches” eg, right? Well, I produce a Chrysler magazine (not affiliated with Chrysler itself), and I want to use the Chrysler logo as part of a small graphic on every single page of the mag. My question is; can I legally use it without permission?? The “M” in the above link is not the ‘best’ example, as the “M” is somewhat modified (it has type over it, breaking it up). I want to use the whole Chrysler star. I don’t want “opinions” - I really need the facts - cites will be fantastic.
The big question is whether there could be legitimate confusion as to whether your magazine is actually affiliated with Chrysler. Nobody would think that McDonald’s would actually authorize t-shirts about masturbation, so the example in your link is probably OK (though their lawyers might send nasty letters about it anyway), but a person might legitimately think that a magazine about Chrysler vehicles is affiliated with Chrysler, so that would probably be considered an infringement of their trademark.
And all you can get off of a message board is opinions, on a legal matter like this. If you really need the facts, then you really need to hire a lawyer.
My informed opinion is that you don’t have a chance in hell of this being legal. But I’m not a lawyer, although I’ve spent a lot of time reading about trademark and copyright. As said, if you’re a business, hire a lawyer. No one can possibly know the particular facts of this particular case, partly because you haven’t given us any. And that can’t be done over a message board anyway.
Yes I am aware of the fact that in a way it’s a “legal” question. The facts are that the mag is real, but the application isn’t. It all started with wondering about the M logo - then we asked each other what if we used the same ideology in our mag. (Whatever the answer, we aren’t even game to try, we dont need the legal hastle)… we were in descussion and I was sure that we COULD use it, and the friend was sure we COULDN’T. Now… asking a lawer, would take away ALL the fun of giving intelligent people here a chance to think about this issue, as well as it would take away ALL my cash that I poses (for a trivial* question)… so yes, Opinions are warented, but it would be great to have a cite - not necesarily from a lawer, but maybe from a high ranking designer’s point of view.
*trivial - its couse we just wanna know out of interest.
Asking a lawyer may take all the “fun” out of it. However, not asking a lawyer may result in you and others becoming the “fun” of Chysler’s lawyers all the way to the bank, and beyond.
IANAL, but like Exapno, I’ve had reason to learn about trademark and copyright law.
To repeat Duckster’s quote:
I’ve bolded the key point: it’s not infringement unless you use the mark in the same business, or a similar one.
I differ with Chronos on this. The fact that *someone *might assume that Chrysler would publish a magazine wouldn’t necessarily make the OP’s use an infringement, unless Chrysler has registered the mark in relation to publishing. So, on a very narrow reading of trademark law, using the Chrysler logo as described in the OP wouldn’t necessarily be an infringement of trademark law.
But, as Duckster shows us, Chrysler (unsurprisingly) holds a copyright on the logo, so it would be a violation of copyright.
However, there’s a difference between what’s legal and what’s expedient.
Is there any contact between the magazine and Chrysler? Could you reasonably expect to get permission to use the logo if you asked? As long as you aren’t consistently and combatively critical of the company, there’s little reason to suppose that they wouldn’t be happy to support a publication by and for fans of their products. I believe that such arrangements are rather common.
If there’s little or no contact with the company, there’s the question of whether they would find it worth the trouble (and the potentially bad publicity) of going after you for trademark or copyright violation. It seems to me that Chrysler’s legal department probably has a few other things on its plate these days. So, recognizing that unauthorized use of the logo might in fact be a violation of some sort, and therefore carries some risk, you might consider going the “easier to ask forgiveness than permission” route. I.e., just go ahead and do it.
As long as you aren’t doing anything (or at least aren’t doing much) to piss off someone at Chrysler, chances are you’ll be able to get away with it. And if they find out and don’t like it, they probably won’t do much more than send a threatening letter telling you to stop. Assuming that the magazine isn’t worth millions, it probably wouldn’t be worth their while to actually file suit.
Sorry I don’t have any cites, but this is what I’ve learned in the course of 13 years of owning trademarks and fending off potential infringement suits. (I won.)
That was my argument as well. And I wasnt selling cars… I was selling magazines.
Probably could - but we aren’t using the logo, so won’t call.
And that too was my argument. Except that I believed I HAD a right.
Thank you commasense for your lengthy comment! And to everyone who advised me to see a lawyer - I know that if this was a real scenario, I definatelly would - the fact is that I wanted a good explanation that I had trouble searching on the net for.
The only way you can use someone else’s work without paying for it, if it falls under the “fair use” category.
This is always problemtic as judges look at various things when making their decision.
For instance Andy Warhol 's Campbell’s Soup Can is an example of fair use. Clearly Warhol is not trying to sell soup. Nor would anyone pay 11 million dollars for a can of soup.
I do a number of parody websites and I get the cease letters all the time, I <knock wood> so far never have had any issues. Why? I feel because first of all my site is clearly parody. Second it includes a disclaimer on every page, third I provide a link to the proper site and finally it’s non-commerical run for my amusement.
I feel if someone took me to court I’d win. Maybe I wouldn’t but for the few number of visitors a year I get (less than 500) it’s not worth the effort the people who write those cease letters to me. Worse than that if they sued and lost, that would open up a whole new can of worms.
Now if I was trying to use their symbols to sell things, I would think I’d lose.
So unless there is a reason to parody Chrystler it’s better to alter the logo a bit, especially if it’s commerical.
Ironically some shows like the Simpsons find it funnier to use names that are sound-a-like but wrong in an attempt to make the viewer think they wanted to use the real brand but were forbidden to.
The bottom line is if you use their letter, they’re not gonna sue you into the ground or whatever. They’ll simply send a cease letter. Then take the symbol down and forget it. Hopefully you can arrange your magazine so that the symbol can be interchanged.
Also I would suggest a disclaimer saying “All logos used are property of Chrysler.”
Another factor is if your site is favourable to Chrysler it will make it less likely they’ll complain.
No, what you have stated is the rule for infringement of the mark. Another cause of action exists for dilution of the mark. Dilution concerns “watering down” the mark and is typically divided into blurring and tarnishment.
The masturbation tee-shirt with the Golden Arches is an arrant case of tarnishment, creating a disreputable association with the mark.
Blurring occurs where a unique mark loses it unambiguous symbolism. “Kodak” calls up film, an instant association that would be lost if you allowed the Kodak appellation to be applied to anything (Kodak shoes, for example), quite apart from whether a consumer would think the Kodak II product was manufactured by the same Rochester, N.Y. company. If you think that is far fetched, you might want to look up Tiffany & Co. v. Boston Club, 231 F. Supp. 836 (D. Mass., 1964), in which the jeweler was able to bar a restaurant from using the name “Tiffany.”
I’ll add a couple more points. First: just to be perfectly clear, what you’ve proposed almost certainly is a violation of copyright law, and perhaps of trademark law also, and I seriously doubt that any real lawyer would ever advise you as I have. You might get away with following my suggestion for years, or Chrysler might decide to sue your pants off.
As Markxxx points out, there is the fair use exception in copyright law (but not trademark law). So an occasional use of the logo here and there, especially with the clear disclaimer that “Trademarks used herein are the property of their respective owners,” would probably not get you into any trouble.
It also happens that the magazine/car distinction does not really provide much, if any, protection in the case you’ve proposed. The reason is that you are talking about using Chrysler’s actual graphic logo, not merely the word “Chrysler.”
The rationale for that provision of the trademark law is to prevent people or companies from monopolizing all uses of a given word or mark. So Acme Food Markets can’t stop someone from registering his plumbing company as Acme Plumbing. And if your name were George Ford, and you wanted to start a magazine, Ford Motor Company couldn’t stop you from calling it Ford’s magazine (except as noted in the last paragraph).
(So now that I think about it, Chronos is probably right.)
Of course, none of this outweighs the the “golden rule”: he who has the gold makes the rules. Assuming that your pockets aren’t as deep as Chrysler’s, they (or any other big company) could decide to send you into legal purgatory by filing or threatening lawsuits, whether they have a case or not, just to bully you into doing what they want you to do.
Not to detract from the correctness of the above statment, trademark dilution may be skirted under the First Amendment if the statment is related to McDonald’s or the mark, e.g. a Golden Arches logo that said “Marketization” or “McHeartAttack.” Or a modification of the Chyrsler logo with a black hole in the middle and money pouring in.
There’s a pretty simply way to tell if you’re infringing on someone’s copyright. If you see an artistic work, be it a drawing, photo, textual work, song, or logo, and think that the work appeals to you and that you would like to be able to use it in some form in a work of your own, then you are going to be infringing.
Don’t even think that altering it by a little or a lot will change anything. In the creative arts, you must be original to succeed. Gathering inspiration from the history of art and expression is a good thing, but when it comes time to executing on your work, don’t copy.
If you have photos in your magazine of Chrysler cars that clearly show the logo, those by themselves would not infringe the trademark. It is the car itself that is branded, not the photo. But adding the logo to the layout of the page certainly would infringe because now you are branding your magazine with a trademark that doesn’t belong to you.
Even without using any logos, it would be very prudent to print a clear disclaimer that you are not affiliated with Chrysler.
*This does not constitute legal advice. It is based on experience working in the graphic arts industry for many, many years.
In addition to what Marxxx and Kimmy_Gibbler stated, to clarify, the dilution claim (blurring and tarnishment) stems from (the short argument/conclusion that) the Chrysler logo is famous as statutorily defined according to the Federal Trademark Dilution Act. In addition to the argument, the OP’s purported fair use can also be countered by allegations of: Passing Off (common law claim) as well as claims under Section 43(a) of the Lanham Act, i.e. false designation of origin; and, false advertising.
While IAAL, and do practice trademark law, this is not legal advice and you are not my client, standard disclaimers apply…
So what you’re saying is that, for example, if you heard a Rick James song you really liked, and you wanted to use the bassline (and more) in your own song, you’ve just got to tell yourself U Can’t Touch This?
Yeah, that strikes me as a little too restrictive too.
It’s not unreasonable if you think about some of the reasons why you want to use it:
The original song is so popular that your song will sell better because people recognize the source
or, the bassline grooves better than what you can write yourself
or, you want listeners to think Rick James’ band is associated with your song.
None of these are fair use.
Apply the same reasoning to the OP:
By using the logo, his magazine appears more official.
The logo itself has an artistic appeal that elevates the quality of his magazine.
The logo is used to identify what car is in the photo.
Only the 3rd case can be argued to be possible fair use. If the only purpose is to identify the subject of the photo, then this could be done using the word Chrysler and the logo is unnecessary.
When we’re talking about non-commercial uses, then it becomes more fair to use copyrighted or trademarked materials. But if you’re trying to earn money off of someone else’s work, it’s hard to argue that it’s fair.
I think you missed the point, which is that you don’t have to be original to succeed… just ask anyone who’s published a successful cover. Or lifted a bass line from one song and used it in another. How do they get away with it? Simple, they pay for it. Copyrights can be licensed. Copyrights, in fact, must be licensed, even if the author doesn’t want to.
However…
“Fair use” is a doctrine regarding copyright. The issue here isn’t copyright, it’s trademark, an very different kettle of fish.
There is fair use doctrine in the trademark statute. It is analogous to copyright fair use. Some courts make the distinction between classical and nominative fair use, but the analysis is substantially similar. Court decision splits don’t matter, because the TTAB takes a wholistic approach in deciding fair use. I don’t think a litigant wants to risk combining the decisions into one precedent.
You sure about this? As I said, IANAL, but it was my understanding that the exception to trademark protection was nominative use, often misleadingly called “nominative fair use”, and that it has little in common with copyright fair use. The justifications for fair use of a copyrighted work are criticism, news reporting, and scholarship. The justification for nominative use of a distinctive/famous mark is using the mark to refer to the product signified by the mark itself, i.e. Apple can’t sue me for trademark infringement if I say “I bought an Apple[sup]TM[/sup] computer.” Or, for a more likely scenario in which a trademark owner might take offense, Apple can’t sue Dell for saying “Our computers are a much better deal than Apple[sup]TM[/sup] computers.”
I think. Once more, IANAL (AYAL?) and I may well be wrong… if I am, I’d appreciate cites to statutory or case law opposing me.
Of course, a graphical trademark like a logo is probably (IANAL) considered a creative work and as such protected by copyright as well. If I were the OP, I’d exercise caution.