Question numero uno:
Is it a violation of copyright/trademark law to use the name of a product without its distinctive trademark for commercial use? Like, I know I can’t sell aprons with the distinctive Budweiser logo on them, but what about a sentence like “Budweisers not served here” in a bland Helvetica font?
Question numero dos:
Sometimes when I go to the mall, I’ll see various clothing stores selling shirts with parodies of corporate logos – like a Mastercard logo but with the word “Masterbate” instead. I was under the impression that these fell under the category of parody, yet I was recently told that the laws protecting parody do not apply to trademarks. Is that correct? If so, wouldn’t that make those shirts illegal?
IANAL,
But as for Question One, you can put up a sign saying that you don’t sell something with the name of any product I believe. It’s not like you are trying to confuse people by using a similar mark. You are just informing them of what is not offered.
Question 1. A trademark exists to protect the interests of the company that registers it. In this case, Anheuser-Busch has registered ‘Budweiser’ so that, in theory, they can control every use made of it. They can stop people doing naughty things such as saying they sell Bud (to attract customers) when they don’t, or passing off another product as if it were Bud, or doing anything that will diminish the value or reputation of the brand. And every instance of the trademark ought to carry the ™, to show that it is a registered trademark and to remind people that the trademark owner controls its use.
In practice, they are unlikely to want to sue you just for writing out a sign giving valid information which doesn’t harm their interests.
Question 2. The owners of the trademarks can only pursue legal redress if the items in question are deemed to harm or damage their commercial interests, or to violate any other rules protecting commercial interests.
For example, if the vendor advertises a ‘Budweisser’ beer, which is suspiciously close to ‘Budweiser’, he would probably be deemed guilty of ‘passing off’, and trying to gain the value of the Budweiser brand without Anheuser-Busch getting any of the action. This isn’t allowed.
In the case of the funny T-shirts, in many cases the manufacturers will have cleared the design with whoever owns the relevant trademarks, or the copyright on the original artwork, to avoid the expense of manufacturing the shirts and then running into legal troubles. However, the owners of the trademarks or copyright on the source artwork can only pursue legal redress if they can demonstrate that their commercial interests are being harmed or violated. This can be tricky. One legal shark might say the ‘Masturbate’ parody demeans the value of the brand. His opponent might say Mastercard should be glad of the free publicity.
So if I were to do a Mastercard parody of my own, but didn’t clear the design with whoever owns the trademark, and write something demeaning like “Masterscam”…
Well, you could usually win any lawsuit by claiming it was parody, which does give you protection. However, the question is whether you could afford to pay for the lawsuit. Mastercard has more money and more lawyers than you do.
Last I heard, trademarks were still fair game for parody, but the trademark holder may still try to argue you are hurting their trademark. It may ultimately depend on the judge and who can afford the betters lawyers.
The makers of Zork started a newsletter and called it “The New Zork Times”. They got a letter from the NYTimes’ lawyer to cease and desist. I think that was stupid and I am not sure they could have won, but the Zork people didn’t want to fight. I think they damaged themselves more than anything the parody could have done to them.
A trademark is a limited monopoly for limited purposes. Anheuser-Busch can neither in theory nor in fact lawfully control every use made of it, not even close. If it were so, then trademark law would be struck down as a violation of the First Amendment.
There is a very important concept in intellectual property law, known as “fair use,” under which individuals have a right (not permission, note, a right) to use a trademark for a variety of purposes, including to criticize the company or the product.
As to your particular questions, they don’t sound to me at first blush like trademark infringement, but I’m going to have to look a few things up, including whether either of them might be considered trademark dilution.
(This is not legal advice, etc. – I am a lawyer, but not a practitioner of trademark law. My comments are for informational purpsoes only and not to be treated as legal advice. Before taking any action that might affect your legal position, you should consult a competent lawyer.)
A trademark is a limited monopoly for limited purposes. Anheuser-Busch can neither in theory nor in fact lawfully control every use made of it, not even close. If it were so, then trademark law would be struck down as a violation of the First Amendment.
There is a very important concept in intellectual property law, known as “fair use,” under which individuals have a right (not permission, note, a right) to use a trademark for a variety of purposes, including to criticize or poke fun at the company or the product.
As to your particular questions, they don’t sound to me at first blush like trademark infringement, but I’m going to have to look a few things up, including whether either of them might be considered trademark dilution.
(This is not legal advice, etc. – I am a lawyer, but not a practitioner of trademark law. My comments are for informational purpsoes only and not to be treated as legal advice. Before taking any action that might affect your legal position, you should consult a competent lawyer.)
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