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RE: [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: microlenz@earthlink.net [mailto:microlenz@earthlink.net]
> Sent: Thursday, March 06, 2003 6:45 PM
> To: Joshua Stratton; dvd-discuss@eon.law.harvard.edu
> 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 <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?
> >