Trademark Law (Once Again) Getting In The Way Of Fan Art

from the time-to-embrace-free-licenses dept

Rose M. Welch points us to this recent News.com story about how the popular homemade crafts website Etsy has had to balance trademark issues, since many people like to make "fan art" and often would like to sell it on the site. In some ways, it appears to be the same sort of thing that many content creators went through with people creating fan fiction or other forms of fan art online, complicated (of course) by the fact that Etsy is used to sell these goods. The overall article is about what you'd expect.

However, I did want to take issue with one part of the article, which repeats the (oft-repeated) claim that trademark holders have to block such uses of their work. That's not quite true, and it's annoying that it gets repeated as fact all the time. Rights holders do have to protect unauthorized uses of their work that are likely to confuse, but don't have to protect in cases where there wouldn't be any confusion at all. Separately, (and this is the part that most often gets ignored) if they come across an unauthorized use, they absolutely can issue a free license to make it authorized -- and thus, not risk "losing" the trademark. However, very few brands do this, in part because of the myth that they absolutely must stop all unauthorized uses. There are other options, and granting a license is a good one.
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Filed Under: fan art, trademark
Companies: etsy


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  1. identicon
    Anonymous Coward, 3 Nov 2010 @ 8:31am

    I think this posting is a little too facile regarding "policing" trademark uses.

    It's true that a trademark owner doesn't *have* to stop everyone from using any remotely similar trademark. But it is a sliding scale, and distinguishing between those likely to cause confusion and those that are not is (a) not easy, and (b) not an opinion that is likely to be shared by the next guy that is using something close to the mark in question. In other words, if a trademark owner thinks the use of TRADEMAARCK on somewhat similar products is fine, and does nothing, the next guy who uses TRADEMARCK on the same products will point to that and say his use is no big deal.

    Also, a trademark owner can't simply grant a free license willy-nilly and resolve the problem. Trademark licensors must ensure the quality of the licensed good/service or risk losing their trademark rights. So there's some work and/or risk that goes along with granting such licenses.

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