Trademarks, Copyright, and fair use?

One of my little side projects is to design and sell T-shirts (big whoop). One of the design ideas I am toying with is one that is critical of Microsoft and its role as an illegal monopoly; I’d like to print up some shirts and sell them for a small profit.

I want to use the Windows logo on the design, to give it a bit of color. I know the logo is a trademark, so technically I’d be infringing on Microsoft’s rights, but I’m also under the impression that trademarks and copyrights are not enforcable under “fair use” – such as satire and undesirable speech, which is where I’m at. On the other hand, I was told that “fair use” is not a valid protection if I’m selling things for a profit.

So I ask the law-oriented geniuses of the SDMB: is this correct? It sounds like a crazy law that unduly restricts satirists and social commentators, but the law has always been wacky. Can I reproduce the Windows logo safely, or will I be beaten up by Bill Gates’ goons if I do so? How about if I used a box of crayons and doodled a close apprximation instead? What’s the real dope on using trademarks for satire and criticism?

I can’t speak to the specifics of what the OP is asking since it seems to be walking in a gray area that is best left to an attorney to answer. There are exceptions to copyrights and trademarks that allow for satire but just how far that protection extends I couldn’t say. I will say that I seem to recall that employing fair use as a defense actually makes you plead guilty to the plagiarism in the first place. If you fail in the fair use defense you are almost automatically screwed after that as you have pretty much foregone any other defense.

All of that said it may not matter. Sometimes the mere threat of a lawsuit is all it takes. For the sake of argument lets assume that you would win in court if Microsoft decided to sue you. Does it matter? Microsoft has deep pockets and scads of attorneys. Are you prepared to go through a 3 year trial and spend tens of thousands of dollars defending yourself?

This seems to be an unfortunate reality of today’s legal system where someone in the wrong can still win the day merely because they have the capability to smash around in court longer than the other guy.

IANAL… but if I recall correctly from my days of editing intellectual property texts, the “parody defense” against a charge of trademark infringment works best when your parody is REALLY obvious, so some subtle tweaking of the Windows logo would likely get you in hot water. If you doodle with a box of crayons, you might be okay.

From my non-lawyer’s perspective, whether a spoof is considered likely to cause confusion - a key test of the parody defense - depends on the judge/jury hearing the case. I don’t remember the exact cite now, but I recall a case where the judge ruled against the defendant’s parody of Mutual of Omaha (called “Mutant of Omaha”) because the judge felt the likelihood of confusion between the parody and the real thing by the general public was high. Kind of a sad comment about the general public, really.

Before you do anything, though, ask yourself whether you’d care to have to defend yourself in court, even if you’re in the right, should MS take umbrage & decide to sue. Intellectual property lawyers are very expensive fellows.

Fair use is very different for trademarks and copyrights. IANAL, but I believe the two main issues in determining fair use of a trademark are whether you can refer to the product without using the mark (e.g., you can’t really discuss “Microsoft Windows” without using the trademarked “Windows”) and whether your use implies sponsorship or endorsement.

From your description, you certainly aren’t implying any endorsement, but I’ll bet they could make a strong case that you can criticize Microsoft and its products without using the graphic logo. That means you wouldn’t have fair use for the trademarked image.

Yeah, I figured. My idea would be to set things up beforehand so there’s no chance I’d get threatened or sued – e.g., make sure I’m so clearly in the right that I don’t have to worry about the matter.

So it sounds like if I drew something that was invocative of the Windows logo while being obvious that it isn’t the official logo, I’d be in the clear. Is that your meaning?

One other question – what are the issues on the uses of photographs and images of people? Like, if I were to use a picture of Bill Gates instead of the Windows logo?

I know the law prevents unauthorized use of someone’s image, but aren’t there some latitudes for high-profile public figures (like the President for purposes of parody/satire/commentary)?

Even people who are entirely in the right get sued. You can sue anyone, and big companies frequently sue as a harassment tactic, knowing you’ll settle rather than fight. You may have an ironclad case, but if your t-shirt is successful enough to get on their radar, you’ll be sued.

The law will have standards like “confusing to the consumer” which are entirely subjective. It depends on the judge and jury (and the persuasiveness of the attorneys), so there’s no way to be sure whether you are merely evocative but uninfringing until the verdict comes down.

To further this discussion a little further. Does not parody or satire sort of depend on not being for profit but rather ridiculing the trademark, copyright, etc. If you are doing it strictly for profit, it seems that the definition of parody or satire has been usurped. I feel that this is what Microsoft’s Attorneys would concentrate on. After all they essentially got the US Government to back down (sort of) on the Antitrust suit. So I feel that the OP would have a very difficult time supporting his claim of Parody or Satire.

And has anyone ever seen a parody of Microsoft at all?

Several years ago, some outfit marketed polo shirts with a little alligator, upside down with ×s for eyes. Izod was successful in forcing them to discontinue the line. (They were not able to get them to recall the sold shirts, but they certainly caused the “parody” brand a lot of grief.)

You *might be successful if you created a “door” that waved like a flag, but you might want to be sure that the colors didn’t match, etc.

From what you describe, there’s a good chance Microsoft might sue you for trademark infringement. Maybe you and win, and maybe you can’t – the court will have to decide – but it’s going to be expensive, and Microsoft can afford the cost much better than you can.

You can’t sell something with someone’s image without their permission (you usually can’t even publish a picture of someone, unless it’s some sort of public event or crowd scene). Again, you can argue the parody defense if it goes to court, but it’ll be expensive for you.

Intellectual property law makes no differentiation between doing something for profit or not. It doesn’t matter in the slightest whether you’re making money or giving the shirts away – if you aren’t given permission to use the trademark, it’s a violation. Parody can be a legitimate defense, but that doesn’t mean you won’t get sued and have to hire a lawyer.

There were once a few references to “Microsquish” (their term) in the comic strip Bloom County. They survived at least long enough to be compiled into one of the books.

I once bought a T-shirt that depicted Bill Gates as one of the Borg from Star Trek (“resistance is futile”). I also bought a T-shirt that used the Monopoly board game logo, but replaced Uncle Pennybags with Bill and the word “Microsoft” instead of “Monopoly”.

I suspect part of the reason they succeeded was because both Izod and the “other” outfit were competing in the same market – they were both selling polo shirts. I know trademark law is more inclined to favor the holder if there’s a chance of product confusion.

That seems to be a severe restriction on free speech for public figures, ainnit? I mean, what if I printed up a shirt that depicted George W. Bush as a central American dictator and sold it at the next Democratic National Convention? As you describe it, I’d be in the wrong for doing so, even though it’d clearly be a case of making an opinionated statement. Or would I be okay if I avoided a photograph of the person and just used a cartoon/drawing/doodle instead?

Geez, with all these restrictions in place, no wonder there’s a dearth of satirical stuff in the marketplace. Can I at least assume there’s no risk in just using the word “Microsoft” on a shirt, if it’s not in the form of a logo?

Legal disclaimer – consult a lawyer where you live. Do NOT rely on the below. I am likely not licensed to practice in your jurisdiction.

There are several cases on use of a trademark in a parody or satire. Mutant of Omaha. Lardache. Wacky Packages. And the grandaddy of all parody/fair use cases, 2 Live Crew (I think the official name was Acuff-Rose v. Skywalker, which went all the way to the Supremes), although that was mostly copyright, not trademark. You should read the case, it is pretty funny seeing the august Justices discuss the rude and lewd lyrics of 2 Live Crew…

Can you parody a mark? Yes. How much of the mark can you use? I believe the test is “just enough to ‘conjure up’ the item of parody.” Do that help much? Probably not. Bottom line is, the closer the mark you use to the actual mark, the more you’re likely to have problems. Also, closer the goods are to the actual goods, the more you’re likely to have a problem. Does Microsoft make T-shirts. Probably, to a certain extent.
Oh, and the more litigious and humorless the object of parody, the liklier you are to get sued. Which means if you are going to go after Microsoft, you better be REEEEEEAL careful to make sure you’re clearly over the “parody” line.

I’m in California, if that helps any. Acuff-Rose vs. Skywalker has popped up several times in my searches.

Yeah, but I’m pretty sure nobody thinks of “T-shirts” when they hear the word “Microsoft”. :slight_smile:

So “Microsoft Windows” is out, but “Microsloth Winblows” is perfectly safe, then? Unless there really is a company called Microsloth…

See Slashdot: Microsoft for an image that is obviously Bill Gates with Borg attachments. I guarantee slashdot is not “under the radar” at Microsoft.

Under the radar or not, I don’t think Microsoft would have much recourse for that little icon.

AFAIK, Bill Gates’ face is not trademarked, so trademark violation is not even an issue. Note that they do not use the trademarked Windows logo like they do with many products (e.g. Redhat, Debian).

If you use a picture of a private individual, you must have their permission. People who are “public” (i.e. celebrities, politicians, etc.) give up many of these rights. You cannot use a public person’s image to endorse a product without permission, but you can use it for parody, satire, and other things that fall under the category of free speech. rjung’s t-shirt with George Bush’s image would be legal, I believe. The slashdot icon of Bill Gates falls in the same category.

It seems to me that if you want to derogate Windows with a tee shirt, you can use the logo, but follow it with the “trademark” sign ™. Now you won’t be liable for any trademark suits, but will open yourself up to defamation of character (libel).

Public figures do, in fact, waive their rights not to have their pictures reproduced. If that right were not waived, how can we have all this newspaper pictures?

That’s what I thought was the case, but I didn’t see anything to cover celebrities and public figures – all I could turn up was “a person’s image is protected by copyright, and you must have permission to reproduce it”.

If public figures are fair game for satire, however, it’s time to go to town! :smiley:

That sounds a bit too “easy” to me … is there a cite for the part of the law that covers this? I mean, I believe that the trademark holder has the right to determine when and where the mark is used – merely sticking a “TM” on it wouldn’t allow me to use it indiscriminately, I don’t think.

I would have thought there would be an exception for journalism and reporting, bt then IANAL (hence the need for this thread).

As a college senior planning on law school next fall and taking the LSAT in just 13 days, I really don’t know much. So bear with me here…

After some research last spring, I know about the four common law considerations of fair use for copyrighted material. (And whether the material is for profit actually is a consideration, although commercial intent, by itself, is not sufficient to force a verdict.) Since the courts are left to weigh each of the four factors at their own discretion, it’s very tough to accurately predict results. Most people probably take the easy way out by avoiding litigation at all costs.

I know, however, almost nothing about fair use’s applicability to trademarks. I didn’t even know fair use applied to trademarks, because neither Justice Story or the 1976 Act, TTBOMK, took it that far.

So, I hunted down a little FAQ for you:

As the owner of this site and our own resident IP lawyer suggest, however, it’s probably in your best interests consult an attorney if you really want to go through with this project.

As a practical matter, how big of an operation is this? If you’re only printing up a couple dozen or so shirts, I don’t think Microsoft would 1) ever know about it or 2) care enough to expend valuable resources prosecuting you. After all, as much as they might want to make you suffer for your criticism, they have to pay their lawyers, too.

You’re right, it’s not enough. If I use someone else’s trademarks on something of my own, for instance if I write an article discussing Microsoft Windows, I’m supposed to put the “TM” symbol after their trademark and then footnote it to properly attribute ownership, e.g. “Windows is a trademark of Microsoft Corp.” However, that isn’t enough to avoid infringement if you use the mark in an infringing way.

For example, I can’t produce my own line of clothing with the Nike swoosh by just following the swoosh with a “TM” and putting “Trademark of Nike Inc.” on the label. I’d be committing either fraud or trademark infringment, depending on how they decided to prosecute me. Similarly, you can’t use the Microsoft logo any way you’d like just by properly attributing ownership to them.