An acquaintance of mine is a printer, and had been producing and selling a line of merchandise based on the very common “Keep Calm” meme, but recently received a notice that he had to stop producing the shirts / mugs / other stuff because someone in Canada is claiming the particular phrasing.
Is this a trademark issue? or is it something else like copyright?
I would not have thought something like this was ‘protect-able’ by whatever mechanism is being used, but apparently has become an issue for him. I’m not trying to get particular legal advise to pass along to him, I’m simply trying to understand the mechanism in use here as a matter of my own interest. I have no financial claim in his business whatsoever, I simply like the product/phrasing as it relates to a particular hobby that we are both involved in.
Could he modify the slogan slightly and apply the same protection so that he can continue to sell a line of product? If its something like “Keep Calm and Eat Sausages” could he change it to “Keep Calm and Cook Sausages” and not run afoul of whatever laws are preventing him from continuing this line of business?
Is there any argument he could use based on “making the product first” as would be possible in patent law?
While I think there is an answer here, it could easily be an advise question, so if I have the forum wrong, please adjust as needed.
It could be either a copyright or trademark issue or both. I’d need some specifics to offer any useful information, including what exactly the T-shirts look like and what exactly the demand letter said.
This might be a starting point: names, single words, short phrases, titles, and slogans are not protected by copyright law, by might be protected under trademark law.
The Keep Calm and Carry On phrase originally came from a UK government poster, so I don’t really see how someone else could trademark its “look and feel”.
A company tried to trademark it in the UK (and from Wikipedia it appears it is the same firm that submitted the Canadian application), but I don’t see how buying a poster at auction gives you the intellectual property rights to the wording!
Really, though, your acquaintance needs to stop printing the shirts because it is a very tired and sorry old meme.
Did the British Government copyright that poster from 1939? I wouldn’t think so, considering everybody and their brother is selling “Keep Calm and X” merchandise all over the internet. What the hell is the OP’s brother doing wrong that everybody with an Etsy account seems to be getting right?
That said, anybody can sue you for anything, any time, and it takes a hell of a lot of money to prevail in court, even if you’re indisputably in the right.
This sentence has no meaning. The United Kingdom acceded to and implemented the Berne Convention in the 1880s, more than 50 years before the Second World War. Thus, no one would have to anything “to copyright” something. Copyright protection would attach instantly and automatically to anything that qualified for such protection as soon as it were fixed in a perceivable medium.
According to Wikipedia, the Copyright Act of 1911 was the act that did away with a requirement to register one’s copyrights. So, your main point is correct, but it appears that the date of agreeing to the Berne Convention is not the critical one.
Okay, but US government produced literature and propaganda is not copyrighted, so my question was whether the same applies/applied to the UK. I know no one has to “register” copyrights anymore, but that doesn’t mean some works aren’t public domain.
The rights could belong to the artist that designed it. Government publications aren’t subject to copyright protection, but if the government hires an artist to design something, that’s different.
In any case, it seems to me very unlikely that there’s a copyright claim involved here.
Agreed. But can you trademark a previously used government propaganda slogan? And if, according to Wiki, “The company is now trying to trademark the slogan in both the United States and Canada,” can you claim trademark protection on a mark you’re currently in the process of trying to trademark? How does that work?
I guess it doesn’t matter. If you’ve got money, you’ve got the courts, and if you’ve got the courts, you can bully whoever you want. Maybe the OP’s friend can get a Kickstarter set up to fund a lawyer?
It’s not impossible, but I couldn’t say whether it would work out in this case.
You misunderstand the source of trademark rights. This is why you shouldn’t use “trademark” as a verb. The Wiki article uses incorrect terminology.
You earn trademark rights simply by using your asserted trademark in commerce. Thus, you can have enforceable trademark rights whether or not your trademark is registered. Part of the registration process is proving to the government that your trademark rights already exist.
The company is not “trying to trademark” the slogan. It’s trying to register its (already existing) trademark rights in the slogan.
If you don’t mind my piggybacking on the thread, since Acsenray is already posting, has there been any consensus in the TM world about the developers of candy crush applying for a trademark on the word candy?
Any word might potentially become a valid trademark. Obviously, “Candy” can’t be a trademark for candy, but it could be a trademark for things that aren’t candy.
To offer any kind of answer, I’d have to know a lot more about what trademark rights King.com Ltd. is asserting.
Well, Crush is already trademarked by Coke, isn’t it?
IANAL - As I understand it, trademarks only apply to the business you’re in and the likelihood of confusion. So, you can trademard “Apple” as in the Beatles’ Apple Records, but someone else can come along and use Apple for, say, a computer company - because Apple computers would not be involved in the music business so there’s no liklihood of confusion.
(Seriously, when they started producing the iPod they had to go back and renegotiate the settlement terms with Apple records).
Of course, if you’re a very prominent company or a very unique name, the liklihood of confusion is greater. So American Apparel and American Airlines probably wouldn’t be able to stop each other - nobody’s going to confuse them; but if I tried to start a company Nike Trucks or Cocacola Scooter, their (expensive) lawyers could probably make a case for likely confusion.
Similarly, if you don’t protect your trademark, then you lose grounds on which to defend it in future. Hence, a lot of these stories about studios going after Star Wars or Harry Potter fan sites for trademark and copyright violation.
It seems like the guys who sent the letter are trying to begin to establish a claim to the phrase. if peopel knuckle under instead of fighting, it makes their job that much easier.
I have trouble understanding how they can claim trademark on a relatively common phrase, except in a very narrow commercial application (i.e. sports quipment, or clothing) - especially if th phrase has been in common use.
Unfortunately, this isn’t a case of “my buddy has a problem, but it’s really me.” This one is really about someone else, and the story is coming to me 2nd hand… which is why I had questions about the ‘how/why/what.’
Thanks for the link to wiki, I hadn’t even though to look there for trademark issues.
The multitude of answers is why I love this board. Thanks all.
