Re: [dvd-discuss] Copyright v. Trademark

[microlenz(at)earthlink.net]

On 5 Mar 2003 at 12:54, Joshua Stratton wrote:

Date sent:      	Wed, 5 Mar 2003 12:54:12 -0500 (EST)
From:           	Joshua Stratton <cpt@gryphon.auspice.net>
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	[dvd-discuss] Copyright v. Trademark
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> This is somewhat outside of the formal subject of the list, but close 
> enough given what we normally discuss.
> 
> One of the underlying theories that I think we, and Disney, have been 
> operating under is that a work hitting the copyright public domain makes 
> it basically generic in a trademark sense. E.g. Disney might lose a 
> trademark in Mickey Mouse generally, though still be able to hold 
> "Disney's Mickey Mouse." 

The problem is that our "intellectual property" laws have eroded their
foundation, been patched by bandaids and now exploited by greedy people. The 
technological blurring of distinctions between trademark,copyright, and patent 
haven't helped. 


WRT to trademark. The purpose of trademark is to identify goods. Goods
with a particular trademark are identified as having been created by the
owner of the trademark. To sell goods with a trademark that are not
created by the owner of the trademark is fraud. Trademarks are some sort
distinctive design for the purposes of identification.

WRT to Mickey Mouse. If Disney wants to stamp a picture of Mickey on
"GENUINE DISNEY" that's a trademark. To have Mickey prancing about the
screen saying "Buy Only Genuine Disney merchandise boys and girls" is
copyright. The distinction is quite clear (Disney legal staff 
notwithstanding...)





>That is, a trademark holder of a public domain 
> character can't prevent the creation of derivative works based on the p.d. work
> in which the character originated, nor the competition, however confusing, in
> commerce that might spawn from such derivatives being created.

But they can't HOLD the trademark of a public domain character. They can hold a 
particular distinctive representation to identify goods but not otherwise. 
Otherwise, this is a perversion of copyright to preserve a trademark.

I contend there is no confusion except an manufactured one. Mickey Mouse is NOT 
a trademark. ONLY a particular representation of him that is used exclusively 
to mark goods is the trademark. EVERY other representation is not and if the 
trademark is constantly mutating, then they must pay to register all those 
mutations. The whole point of trademark is that it is to be a limited set of 
definite marks to identify goods not an indeterminate countably infinite set.
> 
> I think I've got a good handle on the theory, and I'm not very worried 
> about that. (though if I should be, please let's discuss it)
> 
> What I really want to know is if anyone has seen any cases squarely on 
> point here?
>