Hi
Sorry I can't post link yet so I have to use text only for now.
I am starting a tshirt business and currently making some designs to print on tshirts for sale. I wonder if I would be crossing the line for infringement or not.
I got a design that is similar to the top gun logo but replaced the word top gun with numbers such as 1990. All the colour and wings are the same.
Would this be an infringement because of the wings and colour similar to the original logo?
What about something that is closer that only replace "gun" with "dad" but uses the same colour and wings?
Would it be any problem if we specify that the design is derived from/innovated by topgun?
Do we need to add anything in the description that specify we have nothing to do with topgun? or just not mention topgun at all?
What if it is another logo that we made a similar modification or is it really a case by case basis?
If we want to use a quote in a movie, which I believe is legal if it is short, but can we say that it comes from the movie in the description or title?
Thank you for your time in advance.
Regards,
copyright and trademark on printed tshirt
Hi coolcold,
The problem with the Top Gun logo is that it is both protected by copyright as an artistic work and registered as a trade mark by Paramount Films, for amongst other things use on t-shirts.
This means there are two separate types of infringement which you need to avoid. You might avoid copyright infringement by making sufficient changes, for instance by replacing the words top gun, but when it comes to trade mark infringement and passing off, the test is whether the average consumer is likely to be confused as to the original of the goods. Here's someone else's attempt at doing this which has apparently been accepted without challenge by Paramount.
Added to this is the fact that you want your customers to associate the design on your shirts with the iconic logo. So while the best strategy for avoiding infringement is to get as far away as possible from the similarity, your main purpose pushes you in the opposite direction. On that basis it's hard to provide any meaningful advice, other than maybe to get a licence from Paramount to use the real logo.
You face similar problems whenever you want to use a famous logo. Your only other alternative, assuming the licensing option is too expensive, is to look at the new parody exception. This might allow you to modify the original copyright work in a humorous way and for this to be covered by the parody exception. Also by using the logo in a jokey way (especially if the joke is at the expense of the film itself) you help to avoid trade mark infringement because it becomes more obvious that Paramount will not have authorised the use, and so customers will not be confused. However it remains a tricky balance, not least because we have no caselaw from the courts as to how they will interpret the parody exception in the real world.
The quotation idea is somewhat easier. You may quote short snippets, and as it is a requirement of this exception to cite the source of the quote where this is reasonably practical, that allows (indeed, requires) you to mention the title of the film as part of the design on the shirt.
The problem with the Top Gun logo is that it is both protected by copyright as an artistic work and registered as a trade mark by Paramount Films, for amongst other things use on t-shirts.
This means there are two separate types of infringement which you need to avoid. You might avoid copyright infringement by making sufficient changes, for instance by replacing the words top gun, but when it comes to trade mark infringement and passing off, the test is whether the average consumer is likely to be confused as to the original of the goods. Here's someone else's attempt at doing this which has apparently been accepted without challenge by Paramount.
Added to this is the fact that you want your customers to associate the design on your shirts with the iconic logo. So while the best strategy for avoiding infringement is to get as far away as possible from the similarity, your main purpose pushes you in the opposite direction. On that basis it's hard to provide any meaningful advice, other than maybe to get a licence from Paramount to use the real logo.
You face similar problems whenever you want to use a famous logo. Your only other alternative, assuming the licensing option is too expensive, is to look at the new parody exception. This might allow you to modify the original copyright work in a humorous way and for this to be covered by the parody exception. Also by using the logo in a jokey way (especially if the joke is at the expense of the film itself) you help to avoid trade mark infringement because it becomes more obvious that Paramount will not have authorised the use, and so customers will not be confused. However it remains a tricky balance, not least because we have no caselaw from the courts as to how they will interpret the parody exception in the real world.
The quotation idea is somewhat easier. You may quote short snippets, and as it is a requirement of this exception to cite the source of the quote where this is reasonably practical, that allows (indeed, requires) you to mention the title of the film as part of the design on the shirt.
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
Hi AndyJ
Thank you for the prompt reply. I had a look at your link on someone else attempt but it appears to show top fun and the logo is totally different so I can understand why paramount accept it.
I wonder if I just have such a design and not have anything written related to topgun i.e. to stay away from the trademark, would that still be considered an infringement?
I have also seen a lot of design (google image search) that modify the design by say adding a jet to the design or changing the colour, but uses the identical logo of topgun. Is it still considered an infringement if it tries to link to topgun in the description or title? Would it differs if nothing is mentioned? Would that be considered parody thus acceptable? Or would it pass the trademark infringement but fail on the copyright?
Similarly, if I use BMW and benz exact logo and pretend them to be race cars, in a jokey way (I understand it is subjective but assume it is), would infringe trademark or copyright? What if I have type it in the title something along the line of BMW and mercedes benz racing, would it be considered infringement?
As for quotation, I need to mention the source of the quote, e.g. the film or person saying it if not in a film. Has it got to be printed on the tshirt too or would it be ok to just put it on the website? In this case, would it be ok to use their trademark logo (small one) in the corner to identify where the quote came from instead of text? e.g. "ET phone home." and the ET logo at the bottom right of the quote rather than the name of the film.
Another question would be if
Thank you for your time in advance.
Regards,
Thank you for the prompt reply. I had a look at your link on someone else attempt but it appears to show top fun and the logo is totally different so I can understand why paramount accept it.
I wonder if I just have such a design and not have anything written related to topgun i.e. to stay away from the trademark, would that still be considered an infringement?
I have also seen a lot of design (google image search) that modify the design by say adding a jet to the design or changing the colour, but uses the identical logo of topgun. Is it still considered an infringement if it tries to link to topgun in the description or title? Would it differs if nothing is mentioned? Would that be considered parody thus acceptable? Or would it pass the trademark infringement but fail on the copyright?
Similarly, if I use BMW and benz exact logo and pretend them to be race cars, in a jokey way (I understand it is subjective but assume it is), would infringe trademark or copyright? What if I have type it in the title something along the line of BMW and mercedes benz racing, would it be considered infringement?
As for quotation, I need to mention the source of the quote, e.g. the film or person saying it if not in a film. Has it got to be printed on the tshirt too or would it be ok to just put it on the website? In this case, would it be ok to use their trademark logo (small one) in the corner to identify where the quote came from instead of text? e.g. "ET phone home." and the ET logo at the bottom right of the quote rather than the name of the film.
Another question would be if
Thank you for your time in advance.
Regards,
Hi coolcold,
It's hard to give you precise boundaries between what would infringe and what would be acceptable. Firstly this is because we are talking about two different intellectual property rights - copyright and trade marks - which operate in different ways, and secondly because a lot will depend on the reaction of the owner of the rights. Some companies will be very quick to react to anything they think may tarnish their brand or amount to passing off, even if legally speaking they have a weak case; others may be more tolerant.
With copyright, infringement requires a substantial part of the original work to be copied. Substantial here means a quality or essential part which makes the original a creative work. When you are working with something as small as a logo, it's hard to define this. There are many wing symbols, especially in connection with airlines and air forces, which will be similar to the Top Gun logo and won't infringe. But you are deliberately trying to reference Top Gun, so unless this is being done as a parody, you are going to run the risk of infringement. Adding or leaving out the words Top Gun doesn't really change things from a copyright point of view because those two words are too minimal to attract copyright.
However when looked at from the trade mark perspective, the test is whether a consumer is likely to be confused over the origin of the goods in question. This is a more subjective test where adding the words Top Gun increases the likelihood of consumers thinking your tee shirt may be an authorised use of the logo.
The same kind of analysis applies to any logo which is also registered as a trade mark, including ones like BMW. Car companies recognise the power of their brands and often register their trade marks in a variety of classes of goods which at first sight have nothing to do will car sales, and will often include clothing and novelty items. And the parody defence does not apply to trade mark law.
The problem is that you are trying to trade on the goodwill and fame of these logos, without it seems, any purpose other than making something that might sell well. If your purpose was parody for parody's sake (as in a comedy sketch on TV, say) then you would run into fewer problems.
As for the quotation issue, a reference to the source of the quote is required "unless this would be impossible for reasons of practicality or otherwise". So I think that given the limitations of printing an acknowledge in a small font on a tee shirt, that might well be an instance where it would not be possible. Obviously the same would not apply on a website, so an acknowledgement would be necessary there. Ideally you should be citing the author of the work (so in the ET case, the author of the screenplay) but since there are usually many writers involved in big production movies, this would be impractical and so a reference to the film itself is probably the best option. I would advise against using the logo from the film because you run into the same difficulty as before over whether the tee shirt then looks like an authorised product made under licence.
It's hard to give you precise boundaries between what would infringe and what would be acceptable. Firstly this is because we are talking about two different intellectual property rights - copyright and trade marks - which operate in different ways, and secondly because a lot will depend on the reaction of the owner of the rights. Some companies will be very quick to react to anything they think may tarnish their brand or amount to passing off, even if legally speaking they have a weak case; others may be more tolerant.
With copyright, infringement requires a substantial part of the original work to be copied. Substantial here means a quality or essential part which makes the original a creative work. When you are working with something as small as a logo, it's hard to define this. There are many wing symbols, especially in connection with airlines and air forces, which will be similar to the Top Gun logo and won't infringe. But you are deliberately trying to reference Top Gun, so unless this is being done as a parody, you are going to run the risk of infringement. Adding or leaving out the words Top Gun doesn't really change things from a copyright point of view because those two words are too minimal to attract copyright.
However when looked at from the trade mark perspective, the test is whether a consumer is likely to be confused over the origin of the goods in question. This is a more subjective test where adding the words Top Gun increases the likelihood of consumers thinking your tee shirt may be an authorised use of the logo.
The same kind of analysis applies to any logo which is also registered as a trade mark, including ones like BMW. Car companies recognise the power of their brands and often register their trade marks in a variety of classes of goods which at first sight have nothing to do will car sales, and will often include clothing and novelty items. And the parody defence does not apply to trade mark law.
The problem is that you are trying to trade on the goodwill and fame of these logos, without it seems, any purpose other than making something that might sell well. If your purpose was parody for parody's sake (as in a comedy sketch on TV, say) then you would run into fewer problems.
As for the quotation issue, a reference to the source of the quote is required "unless this would be impossible for reasons of practicality or otherwise". So I think that given the limitations of printing an acknowledge in a small font on a tee shirt, that might well be an instance where it would not be possible. Obviously the same would not apply on a website, so an acknowledgement would be necessary there. Ideally you should be citing the author of the work (so in the ET case, the author of the screenplay) but since there are usually many writers involved in big production movies, this would be impractical and so a reference to the film itself is probably the best option. I would advise against using the logo from the film because you run into the same difficulty as before over whether the tee shirt then looks like an authorised product made under licence.
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
HI,
Just checking to see if I understood them correctly.
Paragraph 1:
I understand and agree that it depends on the owner of the artwork to sue or not and some of them are more aggressive than others.
Paragraph 2:
As for my understand this requires to be tested in court as substantial can be subjective. Adding topgun does not change the matter in terms of copyright
Paragraph 3:
Yes adding the word topgun would make infringement worse but what if it is specified non-official right next to the word?
Paragraph 4:
I thought in your previous message about parody exception said it can be modified in a jokey way such that the owner would not have authorised the use so customer would not be confused? In the case of having two or more competitor logo in a single place, won't that be true?
Paragraph 5:
https://cyber.law.harvard.edu/metaschoo ... ain/tm.htm
The link above also says commercial use could be trickier.
Paragraph 6:
Suggestion is to use text to specify source only as text do not have copyright and trademark issue if it is used to quote the source.
If I modify an image that is in the public domain, does it now becomes "mine" or does it remain in the public domain? Or does it depend on the level of modification that causes it to result in one or the other?
Thanks for your time and sorry about the lots of questions. I am still new to this and would like to learn more about various cases. As for now, I think I will stick with quotes or other stuff for designs
Regards,
Just checking to see if I understood them correctly.
Paragraph 1:
I understand and agree that it depends on the owner of the artwork to sue or not and some of them are more aggressive than others.
Paragraph 2:
As for my understand this requires to be tested in court as substantial can be subjective. Adding topgun does not change the matter in terms of copyright
Paragraph 3:
Yes adding the word topgun would make infringement worse but what if it is specified non-official right next to the word?
Paragraph 4:
I thought in your previous message about parody exception said it can be modified in a jokey way such that the owner would not have authorised the use so customer would not be confused? In the case of having two or more competitor logo in a single place, won't that be true?
Paragraph 5:
https://cyber.law.harvard.edu/metaschoo ... ain/tm.htm
The link above also says commercial use could be trickier.
Paragraph 6:
Suggestion is to use text to specify source only as text do not have copyright and trademark issue if it is used to quote the source.
If I modify an image that is in the public domain, does it now becomes "mine" or does it remain in the public domain? Or does it depend on the level of modification that causes it to result in one or the other?
Thanks for your time and sorry about the lots of questions. I am still new to this and would like to learn more about various cases. As for now, I think I will stick with quotes or other stuff for designs
Regards,
Yescoolcold wrote:
Paragraph 1:
I understand and agree that it depends on the owner of the artwork to sue or not and some of them are more aggressive than others.
Again yescoolcold wrote: Paragraph 2:
As for my understand this requires to be tested in court as substantial can be subjective. Adding topgun does not change the matter in terms of copyright
Adding the words Top Gun to the trade mark for Top Gun increases the similarity and reinforces the likelihood of confusion in the mind of the consumer. Adding a disclaimer would help if the claim was one of passing off, but it wouldn't really assist with a straightforward trade mark dispute. The reason it wouldn't help in a trade mark dispute, is that the context (which would include a disclaimer) is not considered when a court analyses the similarity between the registered mark and the disputed mark.coolcold wrote: Paragraph 3:
Yes adding the word topgun would make infringement worse but what if it is specified non-official right next to the word?
My paragraph 4 was talking about trade mark infringement and as the last sentence in that paragraph indicates, parody is a copyright specific exception, so it is not a defence where trade mark infringement is claimed.coolcold wrote: Paragraph 4:
I thought in your previous message about parody exception said it can be modified in a jokey way such that the owner would not have authorised the use so customer would not be confused? In the case of having two or more competitor logo in a single place, won't that be true?
The link is for US trade mark law, so it is not relevant if you are operating in the UK. Also my paragraph 5 was referring to the copyright exception, not trade marks. Perhaps my use of the words 'to trade on' is what threw you off course.coolcold wrote: Paragraph 5:
https://cyber.law.harvard.edu/metaschoo ... ain/tm.htm
The link above also says commercial use could be trickier.
The quotation exception is another copyright only thing. If you use a trade mark logo in order to identify the source of the quote you run the risk of infringing the trade mark because there is no reason to use it in that way. A straightforward text attribution is all that is required.coolcold wrote: Paragraph 6:
Suggestion is to use text to specify source only as text do not have copyright and trademark issue if it is used to quote the source.
It all depends on what you mean by 'public domain'. If the image is truly free of copyright, because the artist or photographer who created it died at least 70 years ago, then that would mean the work was in the public domain. Unless you know this to be the case, it would be unwise to assume that a 'modern' image is in the public domain just because it appears to be unattributed. Be especially careful of images made available under a Creative Commons license. Only those which don't carry a symbol like thiscoolcold wrote: If I modify an image that is in the public domain, does it now becomes "mine" or does it remain in the public domain? Or does it depend on the level of modification that causes it to result in one or the other?
are safe to adapt. But yes, if the image is out of copyright and you make a derivative work using sufficient creativity, then you would own the copyright in the 'new' work.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