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 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. icon
    John William Nelson (profile), 4 Nov 2010 @ 7:36am

    Trademark licensing isn't like copyright or patent licensing

    People often don't get that Trademarks are very different from copyrights or patents.

    Trademarks are used as source identifiers. Their purpose is to communicate to consumers the source of the product or service they are receiving.

    The secondary purpose is protecting a trademark holder's goodwill in its name or product names.

    Granting licenses to trademarks creates a problem in sourcing. Overly broad trademark licenses can void the mark's protection.

    This is because the mark's holder is no longer the source for the product. No longer being the source means you no longer can ensure the quality and nature of the product. This voids, in essence, the source-identifier purpose of trademark rights.

    This is not to say you cannot license a trademark for use by others. It is to say, rather, that these licenses must be carefully entered into.

    As people have become more and more confused over trademark law, copyright law, and patent law, legislation and decisions have begun to whittle away at the primacy of source-identification as trademark's purpose, but it is still the main reason trademark law exists.

    A simple example of its purpose is the Lanham Act. The Lanham Act is the main body of law governing federal trademark rights; and it is a law governing unfair competition.

    One question is whether all of the products allegedly infringing trademark truly do so. I imagine many do not. But, then again, who wants to pay $10k+ in litigation costs to find out if they're a small business?

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