As some you are no doubt aware, the 1986 movie Troll has a main character named Harry Potter. And, of course, we’ve all seen endless notices on merchandise and Web sites that say “HARRY POTTER is a trademark of Warner Bros, Inc.” Now, what would happen if the owners of Troll were to release a new video version that advertised itself as “the original Harry Potter film”? How could WB claim trademark violation, since the film was made years before J.K. wrote the books?
The purpose of trademark law is to enable consumers to identify the source of goods or services. The movie Troll wouldn’t have a trademark on the name “Harry Potter”, even though the name was used in the movie, because they weren’t using the name to market a particular thing. If they decided to promote Troll as “a Harry Potter movie,” then they would be using the Harry Potter name to market an item. Basically, they would be creating the very confusion that trademark law seeks to prevent. And that would be A Bad Thing.
In a similar line of thought, what would happen if a director or writer named Harry Potter were to create a successful movie? Could they not call it “a Harry Potter movie”? Would Warner Bros be able to sue Harry Potter the director for using his own name?
Possibly. After all, Coca Cola was able to successfully prevent Walter Taylor from using his name on his wine. Coca Cola owns Taylor Wine; Walter makes Bully Hill. Coke not only stopped him from calling his wine “Walter Taylor Wine,” but prevented him from putting his last name anywhere on the label.
Of course, it would depend on the judge. WB would argue that calling the file “A Harry Potter Film” would create confusion. The filmmakers would argue that the film was nothing like the Harry Potter books and that there would be no confusion. Ultimately, the director might have to bill himself as “H. Potter,” or not use his name at all above the title.
Seems a lot like the vast herds of McDonalds’ lawyers who roam Scotland, viciously attacking anyone named McDonald who tries to open a coffee shop, bakery, or other food-related business…
Interestingly enough, the Supreme Court just tackled a case that may be relevant. The applicable current law is the 1995 Federal Trademark Dilution Act (FTDA).
The case is Victor Moseley and Cathy Moseley, DBA Victor’s Little Secret v Secret Catalogue Inc.
Victor’s Little Secret is an adult novelty store that sold lingerie. Victoria’s Secret sued on trademark grounds because the name was likely to cause confusion.
But the Court found that the FTDA requires actual damages, i.e. economic harm. Since Victoria’s Secret could not show that they had been harmed, the Court turned down their lawsuit.
According to an Authors Guild report:
Whether this would apply to identical trademarks, as in Harry Potter v. Harry Potter, is for the court to say.
Wang-Ka, I couldn’t really tell if you were joking or not. Is that true?
no wang-ka wasn’t unfortunately
and from http://www.mcspotlight.org/company/company_history.html
The company (McDonalds) threatens legal action against a topless restaurant in Australia called “McTits”
can’t beat that one