A few basic copyright questions..

Advice for those new to the concepts of copyright
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Jflynn
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A few basic copyright questions..

Post by Jflynn » Fri Feb 22, 2013 8:21 am

Good morning,

I have a few questions regarding trademarking, copyright and I wonder if you can help me.

- If I would like to use an image which isn't on your database, does that mean it is not under copyright or trademark?

- If there is an image which is listed as 'dead' and the company which it belonged to is now liquidated does that mean it is not under copyright or trademark and I am free to use it?

- If there is a trademarked or copyrighted image which is covered under several classes, can I use it on a class of item of which isn't prescribed in the coyright/trademark?

From a business POV I would like to produce items with football club crests. Is there anything I can do legally to make sure people are clear it is unofficial merchandise they are buying?

Many thanks

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AndyJ
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Post by AndyJ » Fri Feb 22, 2013 9:37 am

Hi Jflynn,
I have already answered the copyright question in your other posting so I won't repeat that bit here.
In theory copyright continues for its full term even though the current owner can't be found; this situation leads to such works being known as orphans.
Copyright terms are governed by the lifetime of the person who created the work (for instance a book, some music, a song a piece of art or a photograph) plus 70 years after they die. However if the author was an employee of a company at the time the work was created (and it was part of their job to create such works (for instance like journalists) then the company will be the owner to the copyright but the length of the copyright term remains based on the lifetime of the author.
Trade marks are quite different in this respect. Once they have been registered, they need to be renewed periodically and to remain in use in the class(es) for which they were registered. On that basis they can remain protected almost indefinitely. There are many trademarks which are well over 100 years old and still valid today.
As for using a registered trade mark in a different class, if you used the identical mark that would almost certainly be infringement, especially if it could be shown that your use might cause damage to the reputation of the true owner of the mark, but if you used a similar mark which did not confuse the public as to the origin of the two lots of goods, then that might be OK. A good example of the latter would be the word Apple in connection with both computers and the the Beatles music. although the logos of the companies have to be different.

Unauthorised use of a football club's crest on merchandise - even if you make it clear it is unofficial - would almost certainly get you in to conflict with the club. There are several levels on which legal action could be taken against: copyright in the logo, (which as I mentioned above lasts for some considerable time), trade mark infringement if the mark has been registered, and passing off. Passing off is a branch of civil law which exactly covers the situation you asked about. The club would need to show that they have goodwill attached to their logo (even if it isn't a registered mark) and that this will be damaged if you are permitted to continue selling your goods, and that there must be an element of misrepresentation which will lead to confusion in the minds in the public.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

Jflynn
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Post by Jflynn » Fri Feb 22, 2013 9:41 am

AndyJ wrote:Hi Jflynn,
I have already answered the copyright question in your other posting so I won't repeat that bit here.
In theory copyright continues for its full term even though the current owner can't be found; this situation leads to such works being known as orphans.
Copyright terms are governed by the lifetime of the person who created the work (for instance a book, some music, a song a piece of art or a photograph) plus 70 years after they die. However if the author was an employee of a company at the time the work was created (and it was part of their job to create such works (for instance like journalists) then the company will be the owner to the copyright but the length of the copyright term remains based on the lifetime of the author.
Trade marks are quite different in this respect. Once they have been registered, they need to be renewed periodically and to remain in use in the class(es) for which they were registered. On that basis they can remain protected almost indefinitely. There are many trademarks which are well over 100 years old and still valid today.
As for using a registered trade mark in a different class, if you used the identical mark that would almost certainly be infringement, especially if it could be shown that your use might cause damage to the reputation of the true owner of the mark, but if you used a similar mark which did not confuse the public as to the origin of the two lots of goods, then that might be OK. A good example of the latter would be the word Apple in connection with both computers and the the Beatles music. although the logos of the companies have to be different.

Unauthorised use of a football club's crest on merchandise - even if you make it clear it is unofficial - would almost certainly get you in to conflict with the club. There are several levels on which legal action could be taken against: copyright in the logo, (which as I mentioned above lasts for some considerable time), trade mark infringement if the mark has been registered, and passing off. Passing off is a branch of civil law which exactly covers the situation you asked about. The club would need to show that they have goodwill attached to their logo (even if it isn't a registered mark) and that this will be damaged if you are permitted to continue selling your goods, and that there must be an element of misrepresentation which will lead to confusion in the minds in the public.

Absolutely fantastic.
many thanks, this answers everything.

typonaut
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Post by typonaut » Sat Feb 23, 2013 5:53 pm

AndyJ wrote:A good example of the latter would be the word Apple in connection with both computers and the the Beatles music. although the logos of the companies have to be different.
I'm not sure this is really a good example, given that Apple Corp (the Beatle's record company) initially licensed the name to Apple Inc (formerly Apple Computer Inc), and that the two companies subsequently had legal tussles over the use of the name (latterly by Apple Inc in connection with music) which seemed to go on for about 20 years.

The High Court in London eventually decided that there was no confusion between the two brands, essentially because Apple Inc was a much larger and more visible company. This seems an odd decision given that Apple Inc had agreed to stay out of the music business, but had basically built its current public identity and size on breaking that agreement.

To show the way that this was ingrained in Apple Inc, when System 7 was released in the early 1990s one of the system warning/error sounds was named "Sosumi" (So sue me), it is still in MacOS X today.

For JFlynn's benefit, there is a case that deals directly with disclaimers about the unofficial nature of football-related merchandise: Arsenal Footbal Club PLC v Reed.

I believe that part of the rationale for Reed losing this case is that, despite his disclaimer on his stall as to the merchandise being unofficial, people seeing the goods remotely from that site, or receiving the goods as presents, would not know of the disclaimer and may associate the merchandise with Arsenal (ie assume that it is official merchandise).
Any comment on this forum is just banter, it is not legal advice.

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