2/11/2011

Fictional trademarks: protectable?

"Duff Beer" is the trademark for the beer favored by "Homer Simpson." Just as "Homer" is a fictional character, "Duff Beer" is a fictional trademark. But does that mean that "Duff Beer" isn't protectable - that anyone may use the mark for anything? Fordham law student Benjamin Arrow tackles this question in Real-Life Protection for Fictional Trademarks in the latest issue of the Fordham Intellectual Property, Media & Entertainment Law Journal. By the way, the "Duff Beer" question is not hypothetical. "Duff Beer" was used, without authorization, by a brewery in Australia; and Twentieth Century Fox did sue, successfully. Arrow analyzes that case, and others. His conclusion:
This Note locates fictional trademark injuries under trademark law but proposes adapting the trademark framework to the particulars of the fictional trademark problem. This tailored trademark framework borrows analytical principles from copyright to determine what a use in commerce sufficient to reserve priority in a mark might look like for a fictional trademark, and to determine if a fictional trademark has been infringed. Conceiving of fictional trademarks as real-world trademarks for their associated entertainment products and modifying the trademark analysis to evaluate the strength of those trademarks will help protect valuable intellectual property rights in these entertainment products.