What are general rules for appropriated logos (Whether you are selling them as a design, or using them for marketing)? I have a clothing brand I've been working on (no official LLC yet, so I'm worried about any legal trouble). I've been doing full custom artwork for it mostly, but I've been working on a design that parodies the STP oil logo. I know there is the 30-40% parody law in terms that a design must be changed, but can I legally sell an item that has a graphic of something that appears to be a parody, or could be traced back to the original? Note: This will not be the logo of my LLC, I already have that in the queue for trademarking. This is simply a piece I want to pay homage to a logo that I really like. (posted on Graphic Design Stackexchange, but was reccomenede to take it here.) Thanks for the help!
The relevant law is trademark law. The basic question is whether the mark is identical or creates an unreasonable risk of confusion with the protected mark. There is no per se 30%-40% rule. I can imagine cases where changing a single letter in a long phrase turns a trademark violation into a parody or clearly different mark (see the Electric Company TV show). I can also imagine cases where changing a large part of the mark could still be infringing and confusingly similar. A parody is protected on fair use grounds in copyright law (which could conceivably come into play since this is a derivative work but would be protected since it is a parody), but in trademark law the issue is that a parody is unlikely to be confused for the original. Of course, at a fine grained level when one is looking at particular cases rather than general ideas, you would have to know which country's laws were involved, for example, where the goods would be sold.
The issue you identify isn't really a copyright issue. The same issue would arise if the product contained public domain images in the advertisements that aren't present in the work itself. Essentially, the question comes down to whether there was actionable deceptive advertising. Usually, these claims arise under specialized consumer protection statutes that offer remedies and means of enforcement different from an individualized fraud lawsuit, and usually a deceptive advertising claim is easier to prove than traditional fraud lawsuit. Traditional fraud lawsuits normally require a showing of damages caused by reasonable reliance upon the misrepresentation, which is uneconomic to prove in the case of an individual small consumer purchase. Usually, deceptive advertising of consumer products is established in a lawsuit by a government official in charge of regulating deceptive advertising or a class action lawsuit, and often statutory damages are assigned to each violation rather than requiring detailed proof of economic harm for compensatory damages from some but not other images being present. Often fine print in the advertisement or in a purchase form before buying the product discloses the disconnect. Also, the mere presence of an image in an advertisement doesn't necessary imply that it is included in the product. So prove of deceptive advertising liability in these cases is often difficult even with these relaxed standards. There are many gray area and close cases, and often, businesses settle these lawsuits rather than litigating them. A more specific answer would require knowledge of which jurisdiction's laws apply, which is often a non-trivial question in Internet based advertising lawsuits.
Summary from comments. (Hat tip @jqning) Daniel Nathan Ballard writes here: [It] is not only improper it is UNLAWFUL and may result in serious repercussions... Such a misuse may constitute false advertising... (“It is no doubt true” that affixing the ‘Trade Mark Registered U.S. Patent Office” notice on goods that are not protected by a federally registered trademark creates “a prima facie case of fraud against the public… .”). ... Such use is also a form of “unclean hands” that can bar the user’s registration of the mark. ... Such a use may also bar the maintenance of an infringement case. ... And the fraudulent use of the trademark registration symbol DOES provide other marketplace participants with standing to oppose the user’s registration of the mark. http://www.avvo.com/legal-answers/use-of---symbol-but-not-federally-registered-1125746.html
If such a case came to court, the court would presumably rule that merely publishing the advertising could not be considered to be doing something "commercial". (Otherwise the contract would be absurd, as the question points out.) The court would therefore define "commercial" as some act beyond merely displaying the advertising -- perhaps charging for the website on which it is displayed, or using it to sell goods. Moreover, since the company apparently wrote the contract, any ambiguity in it would be construed against the company, if there is another reasonable interpretation. Thus the contract would not be void, and could be sued on, but the company would win only if it established some conduct that the court was prepared to consider as "commercial" in light of the circumstances and the purpose of the contract. By the way it is not really on point, but it is a common misunderstanding that: some customers may be organized as nonprofit and they're not allowed to make profits Nonprofit entities may do business and make income that would be considered "profit" for an ordinary corporation. What they cannot do is distribute that income as "profit" to owners, shareholders, members, or other individuals.
No, this is not true. Copyright can be enforced selectively. You are confusing copyright with trademark. Company can lose its trademark if they aren't protecting it. All the meanwhile they can choose to ignore some copyright infringement while enforcing their rights on others with no legal problems what-so-ever. In order to illustrate the difference: for example, if someone would make a clone of Super Mario and would call their clone as well "Super Mario" and maybe even would call themselves "Nintendo", even if they have programmed the whole game by themselves from scratch and the art and music would be all different, they wouldn't be infringing the copyright but challenging protected trademarks. In your case, the naming was identical, the art and everything was too similar to the original and therefore the clone was challenging the trademark that needs constant protecting.
Legally, yes, if you get a license from Blizzard (unlikely, and if so, they'll probably want either money or a portion of your profits). Otherwise, not legally. This is exactly the situation that IP law (e.g. copyright and trademark) was created to address. Blizzard created the game and so they have rights to control and benefit from derivatives there of. There are some exceptions, but prints, buttons, and keychains are not likely to meet the requirements for those.
First of all derivative works are not exactly "illegal". They are fully legal if the owner of the copyright in the original work has given permission. If no permission has been given, they may be copyright infringements. But they may fall under an exception to copyright. Under US law, the most common exception is "fair use". See this question and answer for more on fair use. But particularly relevant in this case is that a parody is usually a fair use, although as in every fair-use decision, there is pretty much no clear-cut, hard&amp;fast rule on what is and is not fair use. In the UK and much of the EU (or maybe all of it, I am not sure) there is a somewhat similar concept known as "fair dealing". It is also an exception to copyright. So it is possible that such works fall under fair use, fair dealing, or another exception to copyright, or that the rights-holder has given permission. Secondly, copyright infringement is a tort, not a crime, under most circumstances. It is enforced when, and only when, a copyright-holder chooses to take action, sending a take-down notice or copyright complaint, of filing suit for infringement. Some rights-holders choose as a matter of policy not to take such actions, thinking that such derivative works actually benefit them. That is their choice to make. Some rights-holders don't have the time or money to track down and take action against most infringements, and will only act if they think the derivative work will in some way cost them a lot of money or harm their reputation. Some rights-holders may just not have heard, yet, of specific possible infringing derivative works. As for Acta2, it has not yet been approved, the Wikipedia article linked in the questions says: In order for the text of the directive to become law in the EU, it must be approved by the European Council on 9 April 2019 The article also mentions significant continuing opposition. If it is approved, it is not clear, to me at least, how it will affect sites hosting such content, nor how it will interact with the copyright law of individual EU nations. If approved, it will no doubt take some time before enforcement is widespread. And of course it will only apply when EU law applies. If both site and author are outside the EU -- say if both are from the US -- it seems that it could not apply.
We can't tell you if you can do that or not, because that would be specific legal advise. You should consult an attorney who specializes in trademark law to get an estimation of how risky it would be to use that name. So I am just giving you a couple general pointers. Names are not protected by copyright, but by trademarks. The purpose of trademarks is to prevent consumer confusion. They are supposed to prevent someone from selling a product under a name which consumers might mistake for official merchandise of someone else. Media companies in particular tend to be very protective of their trademarks, because merchandising is often one of their main sources of revenue. And they don't want to share that revenue with people creating knockoff products. Also, they must fight for their trademark in court, because when they only enforce it selectively, then they risk that a court will consider the mark so widely used already that it is no longer worth protecting. But the show is from the 1950s. Is the trademark still protected after all that time? Maybe. There are registered trademarks and unregistered trademarks. Registered trademarks, which usually but not always are followed by an &quot;®&quot; symbol, need to be renewed in regular intervals. So if someone still pays for the renewal, it might still be a protected trademark. Unregistered trademarks, which usually but not always are followed by a &quot;™&quot; symbol, are protected as long as they are &quot;used in commerce&quot;. Which means that if the IP owner of that show still sells products branded as &quot;Winky Dink and you&quot;, they can probably still claim unregistered trademark protection. In order to find out, you would need to do your own research or pay your attorney to do a trademark research for you. Are your proposed names even a trademark violation? Perhaps, perhaps not. That's for a court to decide. Personally I think that &quot;Winky Dink and Me&quot; is more infringing than &quot;My Winky Dink Syndrome&quot;, because the first is a lot closer to the original name and brand image, giving it a higher likeliness of causing consumers to mistake it for an official &quot;Winky Dink and You&quot; product. But that's an argument you got to make in court. Estimating the chance that the judge will side with you and how much in legal costs it will take you to get to the point where you are even going to have the opportunity to make that argument is a job for your attorney.