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Trademarks and Copyrights (FINAL)

“A guy in New York, who drove around Manhattan with a 25-foot-long fake missile with “Viva Viagra” painted on its side, has been sued by Pfizer, the maker of the drug Viagra for trademark infringement.”
-http://www.techdirt.com/blog.php?tag=trademark

The above snippet is just one of many bizarre but true stories in the world of trademarks and patent infringement.  Whether it is for fun or business, people have to be very careful about what they use when designing anything from a simple joke to a major advertising campaign. Intellectual Property is a very serious business and infringement can be a common occurrence if one is not careful about what one does or says in the public eye. Corporate consultants, painters, photographers, and free-lance graphic designers, to name only a few, need to be particularly aware of such infringements. They need to be prepared to rigidly research the content they use before completing any job.  Even a careful designer can be caught accidentally infringing.

According to Wikipedia, registered trademarks have been in effect in several countries around the world since around 1870, and trademarks in general have been around as far back as 6000 B.C. when beer makers used a design to advertize their product in Mesopotamia. Only in the past century or so, have companies and individuals greedily sought after legal ownership of content and been backed by the federal government.  And only in the past half-century have we seen what some would call ludicrous lawsuits related to trademark and patent infringement.

SEPTEMBER 7–Paris Hilton has filed a federal lawsuit over a $2.49 Hallmark greeting card that uses a photo of the heiress and her trademarked phrase “That’s Hot.”
– http://www.thesmokinggun.com/archive/years/2007/0907072hallmark1.html

Intellectual Property is defined as “A legal field that refers to creations of the mind such as musical, literary, and artistic works; inventions; and symbols, names, images, and designs used in commerce”.  The loop hole to the definition of that term is found when anything created in nature or by a group (as in words or languages) is organized, or re-organized in such a way that nobody in the past has officially noted it as their own, and a trademark or copyright can be applied to it. For instance, in the above example, Paris Hilton sued Hallmark over using her physical likeness and her slogan, “That’s Hot”. Clearly, Ms. Hilton did not invent the words, “That”, “Is”, or “Hot”, nor did she invent the contraction, “That’s”. What she has done is put those two words together and made a case that this phrase defines her persona in the public eye and therefore she deserves to own it such that no other entity can make a profit while using the phrase.  While this is a somewhat reasonable objection by Ms Hilton, Hallmark seems to have figured that a celebrity is considered public domain and therefore it is OK to use the image and slogan.

SNTE, the company charged with maintaining the Eiffel Tower, adorned it with a distinctive lighting display, copyrighted the design, and in one fell swoop, reclaimed the nighttime image and likeness of the most popular monument on earth. In short: they changed the actual likeness of the tower, and then copyrighted that.
As a result, it’s no longer legal to publish current photographs of the Eiffel Tower at night without permission.  That means even to put your vacation photos on your personal web site, you’d be asked to include the text, “Eclairage de la Tour Eiffel – Copyright Société Nouvelle d’Exploitation de la Tour Eiffel – Conception Pierre Bideau.

-http://www.fastcompany.com/blog/fast-company-staff/fast-company-blog/eiffel-tower-repossessed

So what are painters, photographers, or designers to do when working on a job or even publishing photos to the web on a personal website? The smart thing to do is to check the US Patent and Trade Office website and do a search across their database for anything that the professional thinks might be already “owned.” Their search tool is intuitive and easy to use. However, while this may help the person doing the search to find questionable content, what about when even the pro doesn’t know that they don’t know? If someone were to take a photo of the Eiffel Tower at night and then put it on HIS website, how would the person suspect that that image was protected under copyright law and therefore required a credit to be added to it?  In all likelihood, the organization who owns the image would never come across the website, but that doesn’t change the fact that it is illegal to post the photo without posting the credit with it.

“…Then there’s the Lone Cypress, a tree along California’s famous 17-Mile Drive in the Carmel / Monterey area. It is a very popular tourist destination and the tree has been photographed by virtually every visitor with a camera that has seen it in the past 100 years. The tree is now protected from being photographed by professional photographers who plan to sell or distribute the image of Mother Nature’s beautiful lone cypress.”
– http://leica-users.org/v20/msg03902.html

This trademark was either revoked or declined, though the symbol has been trademarked. But the fact that someone tried to own this piece of nature in photos goes to show how interesting trademarking has become. Anyone who will be pursuing photography or design will have to educate themselves on Intellectual Property rights and legal issues and pay close attention to what imagery they profit from.

It doesn’t stop there…

“The actor Damon Wayans has been engaged in a 14-month fight to trademark the term “Nigga” for a clothing line and retail store… Wayans wants to dress customers in 14 kinds of attire from tops to bottoms, and use the controversial mark on “clothing, books, music and general merchandise,” as well as movies, TV and the internet, according to his applications.”
-http://www.wired.com/science/discoveries/news/2006/02/70259

Here, we’re talking about the fields of entertainment and fashion.  While most people will probably not create or use anything quite as offensive as the above suggests, this simply shows how absurd we can be when it comes to patent and trademarking ideas.  While this is an extreme example, clothing designers need to be just as aware of Intellectual Property as the photographer or graphic designer.   

 “Orrin Clayton [of Ottowa] was disappointed when a patch of enormous steel yellow daffodils planned for an Ottawa cancer survivors’ memorial was scrapped in favor of a more generic bouquet of red, blue and fuchsia flowers… The yellow daffodil symbol belongs to the Canadian Cancer Society.
… The Canadian Cancer Society asked the foundation to do away with the sculpted yellow daffodils to avoid infringing on the trademarked logo. It seems branding, in the hyper-competitive world of cancer fundraising, is every bit as important as it is in the world of commerce.”
-http://www.canada.com/ottawacitizen/news/story.html?id=64ffcd9b-4c59-4c6e-9e82-b91bcfeb32cc

Horticulture ? You bet. If you want to tell cancer survivors that you are thinking about them, you better check with the USPTO as well as international copyrights before you go planting a field of trademarked symbols and infringing upon The Canadian Cancer Society’s property.

 “Happy Birthday”, with its ill-fitting lyrics and numbingly simple tune, is actually owned by a subsidiary of the media conglomeration known as AOL Time Warner
-http://www.wisegeek.com/who-owns-the-song-happy-birthday.htm

You may note that you rarely hear the song “Happy Birthday” in a movie or on TV in its entirety. This is because the company making the movie (if it’s not AOL Time Warner or a subsidiary), would have to pay royalties to AOL.

In conclusion, let this be a warning to all artists and creative consultants of the world. BE CAREFUL! Always check your content for patent infringement before finishing a project.  It will not be easy, and you may very well find yourself holding a cease and desist letter for using an image or symbol or song or flower that is trademarked by some other entity.

More entertaining trademark facts:
The actor Martin Lawrence owns the trademark for “You So Crazy”
U-Haul owns the registered trademarks “Moving Help” and “Moving Helper”
M3 Technologies filed for a patent for the phrase “Nerd Sex Fest”
An individual named James Julius Jackson has patented the phrase “Broccoli Obama”
A sole proprietorship – DBA Brentwood Communications – owns the phrase “White Haired Dudes for McCain
Entities that have tried to patent the phrase, “I love you”
Unisystems, Inc
Dualstar Entertainment Group in California

-All of the above were verified on uspto.gov using the TESS database.

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