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RE: [dvd-discuss] Copyright v. Trademark
- To: <dvd-discuss(at)cyber.law.harvard.edu>, "Joshua Stratton" <cpt(at)gryphon.auspice.net>
- Subject: RE: [dvd-discuss] Copyright v. Trademark
- From: "Richard Hartman" <hartman(at)onetouch.com>
- Date: Fri, 7 Mar 2003 10:39:09 -0800
- Reply-to: dvd-discuss(at)cyber.law.harvard.edu
- Sender: owner-dvd-discuss(at)cyber.law.harvard.edu
- Thread-index: AcLkU87WcuqvzYOLSC+9VTIGy1CuawAhO3qQ
- Thread-topic: [dvd-discuss] Copyright v. Trademark
So, a "Commander Riker (tm)" action figure is
not _stamped_ with the figure of Riker, but _is_
the figure of Riker ... this would be an inappropriate
use of trademark?
-Richard M. Hartman
186,000 mi/sec: not just a good idea, it's the LAW!
> -----Original Message-----
> From: firstname.lastname@example.org [mailto:email@example.com]
> Sent: Thursday, March 06, 2003 6:45 PM
> To: Joshua Stratton; firstname.lastname@example.org
> Subject: Re: [dvd-discuss] Copyright v. Trademark
> On 5 Mar 2003 at 12:54, Joshua Stratton wrote:
> Date sent: Wed, 5 Mar 2003 12:54:12 -0500 (EST)
> From: Joshua Stratton <email@example.com>
> To: firstname.lastname@example.org
> Subject: [dvd-discuss] Copyright v. Trademark
> Send reply to: email@example.com
> > 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
> >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?