Knowledge of copyright is slowly improving year by year as more iconic elements of pop culture fall out of its grasp. On the other hand, the equally common method of intellectual property limitation trademarks is still grossly misunderstood. I've noticed a tendency to treat trademarks like copyright with a different name, and that just isn't the case.
Disclaimer: This is not legal advice, I cannot assist you in a legal dispute or query this is just educational material and is to my knowledge correct at time of production. Direct all legal queries elsewhere.
A quick primer, Intellectual Property (IP) has three kinds of protections that limit what others can do with IP, they are as follows:
- Patents: These concern protecting physical things such as designs and medicinal or edible recipes. In the United States of America, the United Kingdom and everywhere else I've checked, these last for a maximum of 20 years and have to be applied for via your nation's Patent Office.
- Copyright: This covers the idea or "Intellectual" part of IP. It generally exists at the point of creation, though registration is sometimes advisable to establish an easy way to prove creation and when in the event of a dispute. In most of the world, the terms last after the death of the creator, though there are exceptions depending on region.
- Trademarks: These don't protect IP so much as they protect the business entity (owner, company etc.) and their business activity on the market. They have to be applied for and approved, but can last as long as the product or service is active on the market.
Generally speaking, the strongest of these three IP types is Copyright, it gives the owner or possessor the greatest control over their product and has the weakest scope to challenge it. Patents are also firm but their short timespan relatively speaking mean that eventually copies and inspired products and designs will appear eventually, that's how generic versions of branded products can be sold legally, often right next to the product they're close to.
Trademarks are the weakest of all three types, because they don't protect the IP, they protect a trademark holder from what's deemed to be unfair competition, usually via misleading and impersonation by competitors. Trademarks have to be attached to specific products, which is how you can have trademarks for public domain imagery and characters, it doesn't affect the character or the image it concerns financial activity. Now the bar on what does and does not count as unfair impersonation is arbitrary and has to be determined by court cases, but the bar for burden of proof is extremely high.
As an example the image at the top, on the left is the original branded and trademarked soft drink Irn Bru (its pronounced Iron Brew), produced by Barr, it's extremely popular in the UK, especially its native Scotland, I enjoy it and its diet version, despite its strong colour its flavour is not remotely Orange based, I don't know how to describe its flavour and the company has run advertising campaigns on how difficult to pin down its taste is. On the right is a store brand cheaper knock off called Iron Brew (it'd be funny if it were pronounced Irn Bru, but, sadly it's just called Iron Brew) I bought from either Aldi or Lidl, I forget which exactly. In addition to looking like Irn Bru it does taste like it as well.
Now, given all the misinformation about trademarks out there, you might be wondering how on earth the stores are getting away with this, did Barr somehow let Irn Bru's trademark lapse? Well no, as an old company it has withdrawn some trademarks on designs and products over the years, but it still maintains several active trademarks.
So, then, what's the trick? Well, it isn't a trademark violation. It's clear to everyone that Aldi/Lidl are pushing their drink as an Irn Bru type soft drink, but the name is different and trust me Irn Bru is iconic here, it's like the distinction between Coke meaning Coca-Cola, and Cola meaning any black fizzy drink. And it does prominently display is brewery mark Vive which isn't Barr the owners of Irn Bru. The trademarks that are still valid include the name and its spelling and specific designs, Iron Brew while close to both is different. If they had also called their version Irn Bru or copied that design exactly or claimed to be an official Barr product, that would be a trademark violation.
I'm not saying Barr doesn't have grounds to get a case to court to be looked at, I don't know and can't know what a corporation's legal department thinks about its chances, that it hasn't suggests (key word) that they don't fancy their chances.
I could've also chosen The Asylum studio and its "Mockbuster" business model, where it churns out cheap movies that bare superficial resemblances to big Hollywood. I think the most well known example was the release of Transmorphers released in 2007 shortly after the first of the Michael Bey Transformers movies came out.
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| If you're curious, this is poster is better than anything in the movie |
Again, it is obvious what the marketing strategy is here, but it manages to be a viable business model for them and the worst they've suffered is reputational damage as purveyors of cheap crap.
So, trademarks not only do not apply to content outside their narrow scope of business, they also don't give you the power to monopolise usage of IP within its narrow scope of business.
So, then, can we conclude that trademarks largely have no teeth? Well, it depends on who holds the trademarks. Another example is the case of public domain Mickey Mouse comics.
You can watch the full discussion online here.
I'll summarise the key points here.
- Despite Disney's firm control of IP several pieces had fallen into the public domain. Including some of the early comic strips.
- Eternity Comics (EC) decided to collect these strips and publish them.
- EC predicted Disney would try to strong-arm them into stopping, and anticipated trademark dispute challenges.
- EC decided to pre-empt Disney by releasing the most trademark compliant comic collection imaginable, the comics were called The Uncensored Mouse, the covers were black, no Disney logos or marks past or present were used, only the artists of the strips were acknowledged and credited.
- Disney still went after them multiple times with their legal department to get them to stop after two issues were produced. Unfortunately for EC, while this was going on it was discovered that one or two of the strips in The Uncensored Mouse had been reprinted in another collection that was still copyrighted, and it looked like the public domain status of the collection was in dispute so EC stop printing them.
For clarification, here's the un trademarkable cover for The Uncensored Mouse.
So to summarise.
- Trademarks are weaker than copyright if your goal is to prevent others from using something you've trademarked.
- Trademarks are a form of commercial protection of the business, not the trademarked thing itself.
