The Trademarking Of Duff Beer: How Fictional Trademarks Become Copyright Issues In The Real World

from the metamorphisis dept

THResq points us to a fun, but thorough, law journal article by law student Benjamin Arrow, looking at whether or not Duff Beer, from the Simpsons, is protectable as a trademark in the real world (or you can go directly to the paper) (pdf). The analysis is actually more complex than you would think, noting that as you shift from the fictional world of the Simpsons to the real world of beer production, the issue switches from being a trademark issue to a copyright issue, where the beer is a form of a derivative work on the copyrighted expression known as the cartoon of Duff Beer.

Fox and The Simpsons’ creator, Matt Groening, developed the idea for the fictional brand, Duff. Therefore, when a real-world manufacturer puts out a product by the same name, one might think that it has stolen Fox’s idea and that, as a matter of equity, intellectual property law ought to furnish a remedy. But intellectual property law does not protect ideas in the abstract. While a real-world Duff manufacturer may have taken more than just an idea, it is difficult to articulate how much more. Part of the reason it is so difficult to conceptualize the injury Fox suffers when another producer introduces a Duff Beer to the marketplace stems from the fact that Duff Beer is a fictional product sold in a fictional universe under a fictional brand name. Fox’s injury looks very different when we suspend our disbelief and plunge into the fictional world of Springfield, accepting the fictional reality as our own and when we pull back, remind ourselves that The Simpsons is nothing more than a cartoon and view Duff Beer as one element of a vividly imagined work of animated fiction. As a consequence of this puzzle of perspective, Fox suffers a different intellectual property injury depending on our vantage point.

An analogy to Internet law helps explicate the puzzle. Writing on the problem of perspective in this area of the law, Professor Orin Kerr posits that “whenever we apply law to the Internet, we must first decide whether to apply the law to the facts as seen from the viewpoint of physical reality or virtual reality.” Kerr terms the perspective from inside virtual reality the “‘internal perspective’ of the Internet” and the point of view of an “outsider concerned with the functioning of the network in the physical world rather than the perceptions of a user” the “external perspective.” In attempting to apply law to the Internet, our perception of who is doing what to whom is not a mere cognitive tool for conceptualizing difficult problems, Kerr contends. Instead, our selection of perspective is itself outcome determinative, because “[b]y choosing the perspective, we choose the reality; by choosing the reality, we choose the facts; and by choosing the facts, we choose the law.” While Kerr suggests that courts may dismiss this problem of perspective as “a minor skirmish in the ‘battle of analogies,'” he notes that courts “already choose perspectives when they apply law to the Internet” without realizing it.

While this may just seem like a fun, little intellectual query, the second paragraph above highlights why it’s actually pretty important. For nearly a decade, we’ve been pointing out the problems that occur when you take laws from the real world and pretend you can just apply them naturally into a virtual world. The same thing applies here to some extent. In this case, it’s resolved via copyright law, since the creation of Duff Beer may be protectable under copyright in the real world, and any such beer would be derivative. Trademark, on the other hand, which would apply in the fictional world, does not apply in the real world, since there’s no real “use in commerce” of a product known as Duff Beer.

Either way, the paper is a fun read, and actually raises a series of issues that are important and worth thinking about when discussing how the real world law applies on the internet in general and in wider “virtual” worlds.

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Comments on “The Trademarking Of Duff Beer: How Fictional Trademarks Become Copyright Issues In The Real World”

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G Thompson (profile) says:

Re: Re: Re: Re:

Yes because theft is actually by legal and common definition the act that removes property from the rightful owner so that they have no use of it again. In fact there are a few kinds of theft, with all of them still having at their core the actus rae of the removal of item/property. Whether that item is virtual or tangible is no barrier it still has to have the element of removal.

If you steal money from a bank account electronically, that money is no longer within that bank account and cannot be used by the legal owner. ie: theft

Sending a “death threat” is in no way even a part of the unlawful act of theft. In fact threats are more based on the act of trespass than theft.

Might pay you to look at the actual historical reasoning behind certain crimes/torts like theft, negligence, and trespass.

if you think I am being pedantic when it comes to talking about theft/stealing then you really do not have any idea about the rule of laws.

Darryl says:

Re: Re: Re:

If you are playing world of warcraft, and I went to your house and killed you,,, YES, I would be charged for murder.

If I played WoW, and killed your avatar, then I have not broken any laws, the same laws that apply in “real life”, therefore I would not be charged for murder.

Just because different things have different rules, does not mean you can or should apply all the rules in ALL the situations.

That would be stupid !!!! Mike.. !!!

If you do something illegal on Warcraft, just as if you do something illegal in ‘real life’ the consequesnces are the same. if you break a law, or a rule, you can and chould be punished appropriately for that act.

As for DUFF bear, who cares, why not look at ACME.

With the road runner and the coyotte, acme is a real company that makes MANY different products, just like in the cartoon.. If anything you would think that would HELP promote your product, and in return promote your ‘show’.

Obviously the Simpons will profit if DUFF beer profits, because people who buy DUFF might allready be huge simpsons fans.

And DUFF beer, will have an interest in the success of the Simpons because of its promotion abilities.

It’s like ‘post product placement’.

You dont think people who like handguns would like to own a ‘Dirty harry’ handgun ? (I would :))

Anonymous Coward says:

Re: Re: Re:

Ahh, if you are talking “virtual world” as in gaming, then no, the rules don’t apply – except in the contract that exists in the real world granting you use and whatever rights come in that contracts.

If you are talking that virtual, then nothing really matters. The rules are the rules as set by contract.

Mike Masnick (profile) says:

Re: Re:

There is nothing tricky, unusual or confusing about anything here, except your seemingly constant need to manufacture FUD.

I recognize, for whatever reason, that you dislike me. I do not know why — when you have admitted that your own theories on business models for bands had meant that the bands you work with fail, while my theories seem to be working.

Yet, if you wish to continue to insult me and make claims about what I am talking about, it first helps to actually understand the issue. In this case, you have made it clear you do not.

btrussell (profile) says:

Re: Re: Re: Re:

How big were your profits in the 70s’?

I am asking because you have been screaming for over thirty years about declining profits. They must have been huge to still be in decline. No other industry could sustain itself for such a long time in decline. If it is too hard, find another line of business. Maybe start your own blog.

Imaginary Property industries have been ripping off the public for years. You break agreements and now complain about something being illegal? Poor little fox. Did the wolf take the chicken you stole from the farmer?

Anonymous Coward says:

Re: Re: Re: Re:

Yeah, but some artists embrace piracy and don’t care about the public infringing their works because it’s more pragmatic than attempting to dissuade basic human nature. When corporations are greedy, well, that’s just good old fashioned capitalism but when the public is greedy then it’s just unfair? Artists will be fine, unless they don’t wish to connect with their fans or give their fans a reason to buy from them, in which case, their only option is running to the government to punish the “thieves”.

Artists are still making art. They can also still make money. No one is stopping them from doing either.

Any Mouse (profile) says:

Re: Re: Re:

Well, let’s see… The Australian beer was produced in the early 90’s, after The Simpsons was already on the air and drinking Duff. The Daleside Brewery in the UK doesn’t say when they started making Duff. But of course we weren’t talking about international copyrights here, were we? And you don’t /copyright/ a physical beer. It’s trademarked. Like bashing on the US much?

Jeff Rife says:

Re: Re: Re: Re:

And you don’t /copyright/ a physical beer. It’s trademarked.

You also can’t trademark a physical beer.

You can trademark the label design, logo, name, bottle design, etc., but the actual beer can’t be trademarked in any way. So, if somebody figures out how to duplicate the taste exactly, they can legally do so, and as long as they don’t use the trademarked name, logo, etc., in a confusing way when advertising their “clone”, they should prevail in a lawsuit.

Anonymous Coward says:

Re: Re: Re:

Masnick, as he stated above, wants to believe the online world is different than the real world.

It isn’t.

The online world is now a fully integrated tool of commerce. But Masnick wants the online world to still not have to abide by the laws of the real world, so he writes idiotic things like the above to sow FUD into the discussion.

Any Mouse (profile) says:

Re: Re: Re: Re:

There are marked differences between the online and RL worlds, as I would hope you were well aware. Such as if you purchase a digital copy online, you get a true digital copy, usually a download. If you buy it offline, you get a disk. A physical copy that has a file on it. Guess which one costs more to ‘steal’?

If they were exactly the same, then copyright infringement, which the recording industry is calling ‘theft,’ wouldn’t have the fines attached that it does. Please, explain to the class how you can have those differences if they are the same thing?

Mike Masnick (profile) says:

Re: Re: Re:3 Re:

Mike Masnick, any day after today, trying to make a point referencing his own drivel as if it were fact.

It’s so funny when the ignorant get jealous.

Btw, Anonymous, when are you going to call so I can help your failing band? You should have been a part of the conversation I had last week with a band that’s making a ton more money lately thanks to some ideas I had. I’m sure I can help you too.

But, I guess you’d rather rip yourself off than actually succeed. Sad, but your loss.

Bengie says:

Re: Re:

Yes, Fox’ trademark in cartoons. Trademarks are limited to their sector. I could create a flower shop online and call it Intel, AMT, ATI, Ford, Chrysler, or what have you.

You have to exclude the existence of “The Simpsons” because we’re not talking about cartoons, we’re talking about a beverage.

In this hypothetical beer only world, how would someone selling a products named “Duff” confuse customers with another product that does not exist?

Anonymous Coward says:

Re: Re:

I see a very reasonable argument that any consumer would be confused by Duff Beer in the real world. If I saw Duff in a store I would assume that it was either brewed by an affiliate of Fox or with permission/license from Fox. The “moron in a hurry” test would go in Fox’s direction, but at the same time, how can you have a trademark on a brand that doesn’t actually exist.

G Thompson (profile) says:

Though he talks about it inhis article, i thought the readers here would be interested in Twentieth Century Fox Film Corporation and Matt Groening Productions Inc v the South Australian Brewing Co Ltd and Lion Nathan Australia Pty Ltd [1996] FCA 1484 (17 May 1996) [found here]

and the subsequent hearing of Twentieth Century Fox Film Corp & anor v The South Australian Brewing Co Ltd & anor [1996] FCA 480 (19 June 1996) [Link here]

The conclusion in this case was that the Defendant’s use of the plaintiff’s `duff’ beer image to sell beer gave rise to a cause of action in passing off. The court even stated that a carefully worded disclaimer would be ineffective to avoid it this.

The main reason for this decision was based on the beer can itself and not really on the name. Its also interesting to note that until this day Fox do not have a trademark on Duff Beer for the purpose of alcoholic beverages within Australia.

The original image of the beer can can be vieiwed here

This was one of the case studies I did at Law School too. BLAH!

marak (profile) says:

Id just like to point out that duff is actually a town in scotland where they produce whiskey(if i remember correctly).

A quick search produced this:

Im not sure if that particular whiskey is produced there, (and for the life of me cannot remember WHICH whiskey is produced in Duff), but im 99% sure that was the name of the location.

Wouldnt this at least take the edge off any claim? And wasnt there something recently about calling sparkling white wine ”champagne” due to the region restriction. EG a location in France called champagne was kicking up a stink of anyone else producing a similar product and calling it champagne?

G Thompson (profile) says:

Re: Re:

Yep again this was an Australian case (like the above I referred too)

Comite Interprofessionel Du Vin De Champagne and Charles Barker Australia Pty Limited v N L Burton Pty Limited T/As Freixenet Spanish Champagne Distributors and Garland Farwagi & Partners Pty Limited [1981] FCA 196; (1981) 57 FLR 434 (7 December 1981) [ ]

The court held that [in Australia only] the term `Champagne’ had already come to designate any wine produced by a method approximating the `methode champenoise’ [what people think of champagne or sparkling vino] . Therefore there could be no misrepresentation when the defendant used the term in association with wines made outside the Champagne district.

Interestingly this is the opposite of what a court case in the UK [ Bollinger v Costa Brava Wine Co [1961] RPC 116 ] found where a non french company could NOT use the term becasue dilution was proved. Welcome to the wonderful world of international trade law LOL

DMNTD says:

The discussion is a bit misleading, because the “virtual world” (online) isn’t any different at all from the real world

I agree with Mike’s statement, yes, it is. To claim that all things dealt virtually should, let alone would be served as bare minimum yes or no answers are a betrayal to the essence of change.

No matter how many inane comments you make in the attempt of solidifying that opinion of yours, the truth is still ..Yes, it is different virtually and deserves undivided attention.

Wildestgoose (profile) says:

Concepts of Branding

It all comes down to a matter of relativity.

There are virtual games which have their own rules, some even within a network of databases which have their own set of parameters to play by. There is you, sitting in your home with its rules, the rules of your environment, and the parameters within you exist. There are the rules of your municipality, the rules of your province or state, and the rules of your nation.

There are rules to religion, rules of politics, and rules of justice.

Every rule we apply is arbitrary.

The purpose, the application, and the results of the rules’ imposition all tie into arbitrary implications.

In this case. Fox’s brand, The Simpsons’ sole purpose is (to Fox as a corporation) profit. The entertainment value is only so far as Fox’s concern a direct factor in the degree of said profit. If The Simpsons (hypothetically – I’d never) ever became non-profitable, Fox (I assume) would drop it as fast as it could.

The “Duff Beer” being sold in a non-virtual world is likewise branding. Call it copyright or trademark or which one’s rules apply (I’m not an expert, so assign the proper arbitrary term for me) but the underlying fact remains in either case:

Fox has been broadcasting Duff Beer for around two decades.
The concept of Duff Beer is associated with The Simpsons.

Fox’s issue: it appears is that another for-profit corporation is applying the same brand to their product.

On the one hand, its unfair that someone profits off of the work of another. On the other, who’s fault is it that Fox didn’t apply their own concepts into a broader parameter of relativity? Nothing stopped Fox from ACTUALLY MAKING their own Duff Beer. Nothing’s stopping them from, for that matter either, just appeasing the fans and make Duff Beer labels you can cover your own beer bottles with (which then raises further implications).

Personally I feel it comes down to a demand. If people want to apply an arbitrary concept like Duff Beer to the beer they’re drinking, then let them. If the people want to drink ACTUAL Duff Beer from the show, they’re going to have to wait until technology allows them to interact with a virtual environment. Simply put: You can’t drink Duff Beer because it’s fictional unless you do it in a virtual Simpsons environment created by Fox (or whoever owns them by that point).

Any company that decides to take a concept without permission from another company which is currently profiting from the creation of that same brand that has been in place for two decades, and apply that concept towards their own product for the sake of branding is (in my opinion) lazy and unscrupulous business tactics. We have rules against such unscrupulous business tactics. There is no rule against laziness.

Concepts are arbitrary and therefore fragile. Some people will prefer beer because its delicious, others because its intoxicating, and some because of the brand loyalty.

And when you buy something because of brand loyalty you expect your money to go to the brand.

I would be curious to know if Duff Beer corporation (the one in tangible reality) is deliberately expecting the public to be mislead in order to profit off of the brand.

Anonymous Coward says:

Re: Re:

Yeah, but it devaluates the asset because it was produced as a *novelty* item. Hell, I remember when they had trouble selling the extra Krustie-o’s at a 50% discount after the promotion.

It proved that it’s simply not a marketable *promotional* item even with Matt Groening. What’s interesting tho is that the Fox IP Lawyer Squad will present proof that it made some detatched-from-reality-valuation like $100,000,000 a week when they would need to look at it as a promotional cost for the net revenues for the Simpsons movie.

So unless Matt Groening literally starts a brewery, (which I believe that if Fox was smart, they’d just pass the likeness and rights on) this debate is silly. Thankfully, Mike’s Basement Brewery is fully licensed and fully registered.

Gene Cavanaugh (profile) says:

Duff beer

“Trademark, on the other hand, which would apply in the fictional world, does not apply in the real world, since there’s no real “use in commerce” of a product known as Duff Beer.”
That is simply not true. The cartoon is a product “sold” to the public, a “use in commerce”. I don’t think there would be a problem convincing a jury of that.
There is a problem with confusion of the public; one could argue that the public would believe the “Simpsons” were associated with a real beer, but I think that is too much of a stretch, so hopefully litigation would fail on this.

This does illustrate the ridiculous nature of IP today, though. Right on, Michael!

btrussell (profile) says:

“Either way, the paper is a fun read, and actually raises a series of issues that are important and worth thinking about when discussing how the real world law applies on the internet in general and in wider “virtual” worlds.”

I usually agree with you, but I am having a hard time with this one.

Unless you are leaving reality behind, you are never “in” a “virtual world.” You may escape reality, temporary for most, but you are still here.

If you choose to lose yourself in a “virtual world,” leaving reality behind forever, can I still murder you in reality? And should I be charged with murder?

Let the philosophical phunnies begin!

Bruce Ediger (profile) says:

Re: Re:

How far does this go?

There’s “Charlie Brown’s”, a bar in Denver, Colorado. Supposing it goes bad, lots of brawls, prostitution arrests and drug busts take place in it. Has the Estate of Charles Schulz accrued damages to the “Peanuts” cartoon strip?

I agree this example isn’t perfect, relative the Duff beer trademark and copyright example, but it’s for real.

Given your certainty about the Simpson’s Duff beer copyright and a real-world Duff beer trademark, perhaps you could expound on my real life example.

barrywolk (profile) says:


I’m new to this site and have very little experience on these issues (so don’t hurt me, Anonymous Coward) but…

If Homer Simpson is a trademarked cartoon character that cannot be reproduced as a physical toy-doll for sale without Fox’s permission, why can’t the same be said for a toy (or real) can of Duff Beer for sale?

Bruce Ediger (profile) says:

Re: Duff

“Homer Simpson” probably isn’t a trademarked cartoon character. A trademark is a registered name under which business transactions are accomplished: good and services are bought and sold. A trademark only applies in one line of business, so there can be “John’s Bar and Grill” as well as “John’s Plumbing” and “John’s Medical Marijuana”.

“Homer Simpson”, as far as The Precious Intellectual Property thing goes, probably is copyrighted. “Homer Simpson” is one instantiation of an alcoholic, blue-collar everyman. Other such instantiations exist (Jackie Gleason’s character in “The Honeymooners”, I suppose would be an example.

And that’s the permission issue: if Fox hasn’t done business as “Duff Brewery” (or whatever) they don’t have a trademark on “Duff Beer”. They’ve got a copyright on a humorous, fictional Beer manufacturer, and its sometimes mediocre product.

Trademark law allows more than one “Duff” – Duff Beer, Duff Lumberyard, Duff Auto Sales. Copyright does not allow more than one “Duff”, I guess.

But The Most Precious Intellectual Property Law is so confusing, and so riddled with exemptions, special cases and paradoxes that one must actually go to trial to get any definitive answer, apparently.

isthisthingon (profile) says:

Thanks Mike

Interesting read with a humorous flow that helps make an often tedious level of legal discovery interesting.

But that’s not why I decided to finally comment on one of your posts. I read your work all the time and you’ve been a source of inspiration for me. Perhaps what baffles me most is the degree of baseless and angry opposition you face in most all of your articles.

They seem to be coming from reasonably intelligent people who should at least be aware that their blind opposition is transparently just that. This tactic works well on AM radio but looks silly and impotent here, imho. Obviously you’re hitting on sensitive areas that people invested in existing power structures fiercely defend, perhaps resulting from financial ties or simply their egos. Keep the light on and eventually the roaches will scatter.

But again, thank you for all the hard work. You do an exceptional job challenging accepted beliefs and bringing clarity and understanding to areas where most of us simply remain asleep and trust our spoon fed truths.

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