Titles can not be copyrighted. As a composer, I can tell you that I never have to worry about the title of my work, especially when I choose something generic like “Symphony No. 1” or “Concerto for Flute and Piano”.
This even extends to books and movies. I could write a book and title it “To Kill A Mockingbird” in which I describe bird-hunting techniques. As long as the content of the text is not significantly identical to any previously copyrighted book (regardless of the title), then I have not broken any laws.
Cecil said that words or phrases could not be copyrighted, but didn’t Marv Albert copyright the word “Threepeat” one of the times the Bulls were about to win their third title? I remember hearing that anyone who used the word on the air would have to pay him. Was this just urban legend?
I’ve noticed that commercials for companies not associated with the NFL no longer use the term “Super Bowl.” Usually it’s some lame substitute like “pro football championship.” But I also heard one radio spot (sorry, can’t recall the product) that made fun of it: “legally, we can’t tell you the name of the game, so let’s just call it the Uper-say Owl-bay.”
Trademarks last forever, as long as you keep using them and as long as you shoot down anyone who tries to steal them. (In this respect, the oft-repeated story about mean ol’ Disney and some day-care center or other is unfair to Disney. The law is quite clear; if you don’t defend it this time, you lose your right to defend it next time.) A trademark is anything that you use to identify your unique business. (The oldest one in continuous use is Bass Ale’s red triangle.) And the main test of whether a trademark is being infringed is whether someone might reasonably confuse the two businesses being advertised. And ownership of the trademark goes to the first one to use it as a trademark, so, yes, Joe Macy of East Armpit, Iowa, can’t open a store and call it “Macy’s”, even though that’s his name, though he could certainly create “Joe Macy’s Fishing Tackle”.
A copyright is for something you create. It doesn’t last forever (though big media conglomerates are trying to change that). Mickey Mouse is protected by trademark, “Steamboat Willie” by copyright. If someone comes up with exactly the same thing independently, it doesn’t violate your copyright – though if it’s of any size, he’d have to be able to prove he didn’t have access to your work (which is why George Harrison lost on “My Sweet Lord” – he admitted that he had heard “He’s So Fine”). You can’t copyright an idea – only the finished creation (however, juries have a way of ignoring that, since, like 99% of non-artists, they think, poor dears, that having an idea is the hard part).
A patent is for a machine or process you invent. It also doesn’t last forever. You must register a patent, whereas copyright and trademark are automatic, although registering them has advantages. A patent is good even against someone who has the same idea completely independently. However, it must be for an invention that would not be obvious to a professional in the field, and it must be genuinely new.
Thanks! Though I’m still a little confused on two counts.
First of all, these commercial I refer to were not setting up a competing sporting event called “the Super Bowl.” They were unrelated businesses (I think one was a car dealership) which were giving away free tickets as a promotion. How would this be seen as infringement? (Their ads amount to free publicity for the NFL.)
Two, if I were writing an ad for Coke, it would be perfectly legal for me to say “Coke tastes better than Pepsi.” I imagine it would be legit for me to say “a Mustang convertible is more exciting than the Super Bowl.” So why is it illegal to say “come to Beruang’s Tie Shop and enter our drawing for free Super Bowl tickets”?
I think I may have just answered my own question – I’m using your trademark to make money for me. But then, isn’t that also the case in the other examples?
The NFL sells rights to be official sponsors of the Super Bowl. They don’t want people who didn’t pay any money diluting the value of the name, since that will lower the price that they can charge to others. You may think you are giving them free advertising, but you may just be costing them sponsorship.
Essentially, it’s a question of whether you’re “using” or merely “talking about”. “Talking about” is OK. “Using” is within the trademark owner’s right to control.
By the way, because of this, it is necessary that trademarks retain their purity as trademarks. That’s why you’re supposed to say “photocopy” (or “photocopier”) instead of “Xerox”. It’s “a Xerox-brand photocopying machine”, not “a Xerox”. The Xerox company doesn’t want their trademark to turn into a common noun.
Also by the way, in some jurisdictions, it is illegal to say, “Coke tastes better than Pepsi.” But as far as I know, trademark law isn’t a factor.