Can the word &quot;Cola&quot; be used for commercial purposes? I want to start doing some media stuff on YouTube etc and would like to have the word &quot;Cola&quot; in my name (e.g. names like ColaFinder, ColaCabin, StaleCola etc.). Now I am trying to figure out whether the word &quot;Cola&quot; is subject to any IP laws/is trademarked etc. Unfortunately googling for it ALWAYS returns &quot;can I use coke&quot;, and not just &quot;cola&quot;. I'm not looking for any legally binding counsel - I am aware of the limitations of this site. Just trying to get some inputs on this as I struggle to find info online. FWIW my research has uncovered that there is a plant called cola: https://en.wikipedia.org/wiki/Cola_(plant) , so I figure it can not be trademarked on it's own, one can only trademark a specific combination?
Can the word &quot;Cola&quot; be used for commercial purposes? It depends on what you want to do with it, but most uses would be permissible. &quot;Cola&quot; is, as you note, a generic term, comparable to &quot;trout&quot; or &quot;sugar&quot; or &quot;beer.&quot; Still, generic words may be subject to trademark protection. Even &quot;coca&quot; is a generic word. Such protection is, furthermore, not exclusive; trademark protection is more subtle and complex than most people realize. There might be a company called &quot;Cola&quot; that operates guided outdoor activities, but that wouldn't necessarily prevent an unrelated company of the same name from pursuing the same business in another jurisdiction. Similarly, it might not prevent a company that repairs household appliances in the same jurisdiction from calling itself &quot;Cola.&quot; For example, in the US, you can buy &quot;Dove&quot; personal care products and &quot;Dove&quot; chocolate; they are sold under distinct trademarks. The central criterion is confusion: trademark protection primarily prevents others from confusing consumers about the source of goods or services. Even if a word or phrase is unambiguously a protected trademark, there are still allowable uses, most notably to designate the product, service, or company associated with the trademark. For example, if someone wants to tell a story about a bottle of Coca Cola (or even to claim &quot;our product is better than Coca Cola&quot;), the owner of the Coca Cola trademark cannot use trademark protection to prevent them from using the phrase &quot;Coca Cola&quot; in the story (or to make the claim). For a specific opinion about a specific use of a specific trademark, you should engage a qualified lawyer with experience in trademark law.
A company's or brand's logo is often protected as a trademark. It may also be protected by copyright, unless it is so simple as not to be subject to copyright protection, unlike a name, which is normally not protected by copyright. But trademark protection is likely to be more important for the kind of use described in the question. One may not, in general, use a trademark without permission in such a way as to suggest that a product or service comes from the trademark owner when it does not, or is sponsored, endorsed, or approved by the trademark owner when it is not. One may also not use a trademark or any similar mark in such a way that consumers my reasonably be confused, thinking that the marked product or service is the one for which the trademark is normally used. This is know as passing off. In some counties a trademark is only protected if it is registered with the government. in others, like the US, some protection is granted simply on use of the mark, although registration may grant additional protections. Nominative Use It is, in most countries, permitted to use a trademark to refer to the product or service represented by the mark, without permission. This is known as nominative use, because the mark is used as the name of the product or service. Statements such as Our cola has half the calories of PeppyCola. Our GreatBattery is compatible with a Pear28 cellphone. However, valid nominative use usually requires using as little of the trademark as possible. In the US at least, this has been interpreted to mean that it is permitted to use the word or words which constitute the name of the product or service to be referred to, but not the logo or other graphic mark for that product or service. The uses mentioned in the question seem like nominative uses, and it should be fine to use thew name or text representation of the service to be linked to. For example &quot;Buy on Amazon&quot; might be the text of a link to an amazon page from a page advertising a book or other item. But using the amazon graphic logo probably requires permission. Stock Symbols Note that stock symbols are text, not graphics. Moreover, in registering with a stock exchange, I believe that a company explicitly permits the stock symbol to be used to represent the stock, so the trading platform example is a bit different from the other examples. However, use of graphic logos on a trading platform would have the4 same possible issues as other logo uses. Permission In many cases online companies routinely grant limited permission to use their logos to indicate links to their sites, or compatibility with their products. In other cases they may be willing to grant such permission on request. Any use covered by such permission is lawful, But only to the limits of the permission granted. any use beyond that would need to be justified by an exception to trademark protection, such as nominative use. Permission would normally cover copyright as well as trademark issues. Copyright Use of a logo protected by copyright without permission. would also be copyright infringement, unless an exception to copyright applies. In the US fair use is the most common exception, and would probably apply to most of the kinds of uses described in the question, which do not harm the market for the original copyrighted work, and fit the other fair use factors. In other countries, there are various exceptions to copyright which may apply, including &quot;fair dealing&quot;. The exact scope of these exceptions will vary from country to country. Again, obtaining permission will prevent any such problems.
I can see two points you might be confused about in your question. 1. Works can be in the public domain without having a CC license The Wikipedia statement and the government statement are not inconsistent with each other; just because something isn't available under a Creative Commons license doesn't necessarily mean that it is restricted by copyright. In fact, CC licenses are moot for material in the public domain: When a work is in the public domain, it is free for use by anyone for any purpose without restriction under copyright law. Public domain is the purest form of open/free, since no one owns or controls the material in any way. ... Creative Commons licenses do not affect the status of a work that is in the public domain under applicable law, because our licenses only apply to works that are protected by copyright. So if a work is in the public domain, you can use it for whatever purpose you wish (though see below), without restriction or attribution. This is less restrictive than the various Creative Commons licenses, which require various levels of attribution, non-modification, etc. depending on the license chosen by the creator. 2. Trademark protections are separate from copyright protections Your quote from the government website implies that these logos might be trademarked, even if they're not under copyright; this is entirely possible. Roughly speaking, trademark protections keep other people from trading on your good name &amp; reputation; copyright protections keep other people from directly profiting from your creative endeavors. If another party creates a product that uses a trademark in a way that would create confusion among consumers, the trademark holder can sue for that. Depending on how you use the logos, you might run afoul of these protections. See this Q&amp;A for futher details under US law. (Australian law may differ a bit but I would expect that the general principles are the same.)
Generally speaking pop-culture references, like literary references, are neither trademark infringement nor copyright infringement. Trademarks Often a referenced item is in fact not a trademark. Most character names, for example, are not protectable as trademarks, because they are not used to identify the product or service, nor to advertise the product or service for sale. Similarly many pop-culture references which are associated with various groups, events, or products are not being used to identify or promote those things, and so are not protectable as trademarks. Even when a reference is (or includes) a trademarked phrase, it is unlikely to be trademark infringement. As long as the user of the trademarked term or phrase is not using it so as to identify the product or service where it is used, is not using it to advertise or promote that product or service, is not using it in such a way as to cause confusion by reasonable people on what the source of the product or service is, and is not using it so as to falsely state or imply that the product ore service is endorsed, sponsore, or approved by the owner of the trademark, then the use is not in fringement. One may use a trademark to identify a related product or service, to indicate compatibility, or to make comparative claims, and that is nominative use (using the mark as the name of the thing marked). Nominative use is specifically not infringement. Copyright Names, taglines, titles, mottos, and other short phrases are not protected by copyright at all. See the US Copyright office Circular 33 -- Works Not Protected by Copyright, where it is stated: Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain an insufficient amount of authorship. The Office will not register individual words or brief combinations of words, even if the word or short phrase is novel, , distinctive, or lends itself to a play on words. This circulart includes as exMPLES: The name of a character Catchwords or catchphrases Mottos, slogans, or other short expression As I wrote in https://writing.stackexchange.com/questions/60965/what-are-the-fair-use-rules-in-the-usa-for-short-quotes-from-books-or-song-lyric Literary references, including short quotes, to other works of fiction are commonly allowed as fair use. They are usually appropriately attributed. There are several reasons for this. Such references normally do not serve as a replacement for the original. They normally do not harm the market, actual or potential for the original. And they are often transformative, that is, they re-user has a different purpose and achieves a different effect from the original. All of these factors are important in fair-use decisions, and all lean toward fair use for literary or pop-culture references. In fact, there are few cases to cite on such references, because it is so widely accepted that they would be fair uses that no on ever sues over them.
The most important fact to bear in mind is that there's no way to predict whether a given individual will decide to file a suit against you, though we might say on what basis he might, if he so chooses. There are two basic grounds for a suit, one pertaining to trademarks and the other pertaining to use of names – misappropriation and violating the right of publicity. A word can be a trademark, but the scope of protection is somewhat narrow because the protection is in terms of use within a given business. So calling your computer company "Apple" is out, but calling you roofing service the same is okay (assuming that somebody didn't previously register "Apple Roofing"). The main consideration is the likelihood of confusion. Supposing your business were selling landline telephones and I don't think Apple computer company sells such phones, you might still be in trouble if you called your company "Apple Phone", since they certainly do sell phones. There are thousands of trademarks that include "Puff", including Cocopuffs and various pizza and cheese puffs. Since "Puff" is such a generic word, there is a higher bar to proving infringement (there are thousands of trademarks including "Puff"). "Puff Daddy" is, however, a registered trademark covering perfume, jewelry, clothing and certain online services, so there is a non-negligible chance of confusion. In the case of names (or apparent names), an additional concern is whether this is commercial exploitation without consent of a person's name (which causes harm to the subject). The underpinning of this tort is that such a use falsely implies an endorsement of the product. Again, with a fairly generic word like Puff, there isn't a clear implication that Sean Combs has endorsed a product that is called "Puff Communications", but "Puff Daddy Communications" would almost certainly cross that line. The main issues, then, are the extent to which the name is generic vs. unique, and whether it is likely that a person would interpret the product or service as being the same as another, or would constitute an endorsement.
Bringing fair use into this sounds iffy if you are partnering -- that is a commercial relationship which should be defined. If they did send you a file with their logo for a specific purpose, you can assume that you are allowed to use it for that specific purpose. If they did not send you the file, you can assume that they did not give you permission, or they would have included the file ...
There must be a use in commerce Assuming there are no other barriers to trademark protection, you are asking what amounts to a &quot;use in commerce&quot; that is sufficient to warrant trademark protection (I'm assuming in United States law). In the United States, the protection comes from the Lanham Act, and protection requires &quot;use in commerce&quot;. See e.g. International Bancorp, LLC v. Societe des Bains de Mer et du Cercle des Etrangers a Monaco, 329 F.3d 359 (4th Cir. 2003). This requires &quot;the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark&quot; (15 U.S.C. § 1127). This does not require a sale and token sales are not determinative However, &quot;the existence of sale or lack thereof does not by itself determine whether a user of a mark has established owenrship rights therein&quot; (Planetary Motion v. Techplosion, 261 F.3d 1188 (11th Cir. 2001)): announcement of a title (&quot;Plasmer&quot;) to 13 million comic book readers and promotion at a trade conference was sufficient to establish trademark rights, even without sales but a toy manufacturer's promotional efforts were not sufficient—they only made a few presentations and even made one sale to a toy retailer The talismanic test is whether or not the mark was used &quot;in a way sufficiently public to identify or distinguish the marked goods in an appropriate segment of the public mind as those of the adopter of the mark&quot; (Windows User, Inc. v. Reed Business Publishing Ltd., 795 F. Supp. 103 (S.D.N.Y. 1992), citing New England Duplicating Co. v. Mendes, 190 F.2d 415, 417 (1st Cir. 1951)) The Court in Planetary Motion says &quot;Courts applying the 'totality of circumstances' approach routinely have found evidence of a few sales of goods to which the mark had been affixed insufficient to establish trademark ownership.&quot; In the particular case in Planetary Motion, the Court found that free distribution of software using the &quot;Coolmail&quot; mark constituted a &quot;use in commerce.&quot; The factors they noted were: the distribution was widespread there was evidence that the public actually associated the mark with the software distribution was not limited to a trade show or a group of friends or small circle the software was posted and accessible on the internet using the filename bearing &quot;Coolmail&quot; users were communicating about the software using the word &quot;Coolmail&quot; the software was incorporated into other software that was sold the software was distributed under a GNU General Public License—&quot;the sufficiency of use should be determined according to the customary practices of a particular industry&quot; Application is fact-based, looking at the totality of the circumstances Applying the principles from above to your hypothetical, the fact that there are not widespread sales would raise an immediate issue that could be argued in litigation. The question would come up as to whether this was a &quot;bona fide use&quot; and not use &quot;made merely to reserve a right in a mark.&quot; In my view, the single donation of one dollar would not change anything; nor would even a literal sale of a single shirt. The question would turn on whether the distribution of 100,000 shirts, even without sale, created a connection in the minds of users between the mark and a product (presumably clothing?), and put others on sufficient notice that this mark was to be used in commerce. This is a heavily fact-based inquiry, and on the facts of the hypothetical, we just don't have the information to answer this.
This is known as nominative fair use. The leading case in the US is New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302, 306 (9th Cir. 1992). The International Trademark Association (ITA) summarizes: Nominative fair use generally is permissible as long as (1) the product or service in question is not readily identifiable without use of the trademark, (2) only so much of the mark is used as is reasonably necessary to identify the product or service and (3) use of the mark does not suggest sponsorship or endorsement by the trademark owner. The ITA uses iPhone cases as an example of allowable nominative use: Use of “iPhone” in non-stylized form on packaging for phone cases to indicate that it is usable with iPhone 6. Here is an example of that by J.Crew.