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Zer Netmouse
April 28th, 2009
04:42 pm

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Ongoing news in the whitewashing of Avatar

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From:netmouse
Date:April 28th, 2009 11:07 pm (UTC)
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"can not use someone else's trademark in any way, regardless of profit or lack thereof."

Can you point me to the part of trademark law that says so?

I mean, I certainly see parodies of products. I see them all the time. (or is that why adbusters is based in Vancouver?) And you can write reviews and criticism in the newspaper that name characters. To me, the printing of text on t-shirts and things in this context is a printing, i.e., speech issue. And I really don't believe I am not protected by law in saying "Aang can be brown and still save the world." Whether I write it here, say it out loud, or put it in a slogan on my chest. One key term in question was actually "Avatar" anyway, not a character name. And they certainly can't claim sole (or even original) use of the term "Avatar."

Trademark prevents someone from using your term in the same commercial sphere as the trademark, for a similar purpose. Political protest is *not* the same purpose as movie production. I think you're wrong when you say trademark is ironclad in as general a way as you are implying.
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From:tacit
Date:April 28th, 2009 11:18 pm (UTC)
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Canadian law is different from US law in the matter of trademarks. Free speech doesn't apply to trademarks at all; rest assured that you absolutely can not make and then sell, or even give away, T-shirts bearing the Apple logo, the Coca-Cola logo, Mickey Mouse (in name or likeness), Scooby Doo, or any other trademarked sign, character, or symbol.

In fact, Disney has successfully sued day-care centers for painting pictures of Mickey Mouse on the walls.

The full text of US trademark law is here. In particular, §1115 sets out incontestable right to exclusivity.
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From:netmouse
Date:April 28th, 2009 11:49 pm (UTC)
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But, you can, for instance, put the word "Apple" on signs, t-shirts, etc.
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From:netmouse
Date:April 28th, 2009 11:55 pm (UTC)
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(in other words, names and logos are not the same thing.) And using a Mickey Mouse character on a day-care wall is using the visual depiction of the character for the purpose for which it was intended and trademarked, in other words in competition with a purpose the Disney company might use it for in a product consistent with the trademark.

Newspapers and magazines publish pictures of logos and characters all the time.
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From:tacit
Date:April 29th, 2009 02:08 am (UTC)
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Trademark law is one of those areas that many people think they understand but few people do, and where myths and misconceptions abound. That's to be expected; if you've never spoken to an intellectual property attorney, I guarantee you'd have no way to understand any of it.

You can put "Apple" on a T-shirt because it is a common word; you can not put "Apple" on a T-shirt in any context that has to do with computers--you could not sell it with a picture of a computer on it, or at a computer fair.

Words that are entirely made-up can not be used at all. You absolutely, positively can not print T-shirts that read "Harry Potter," "Taligent," "Viagra," or "GI Joe" under any circumstances. Since "Aang" is not a word, nobody using it can argue that it does not refer to the trademarked character.

Newspapers reproduce logos and such only with permission or in certain other very specific exclusions.

All of this the designers of the protest T-shirts would have known, had they consulted with an intellectual property attorney before they started (which they really, really should have done). The only reason I know this is that my job requires it; I am responsible for, among other things, trademarks for my clients, and when I had an office in Tampa I had an intellectual property attorney on call.

You need not take my word for any of this; I absolutely encourage anyone with an interest in trademark law to talk to an IP lawyer, read a book on the subject, or do their own research. What you'll find will likely surprise you.
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From:netmouse
Date:April 29th, 2009 02:28 am (UTC)
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I have spoken with an intellectual property attorney. I read up on this subject this summer when discovering that I could not use a name I had hoped to use for a start-up company not just because the name was already in use, but because it was in use for a purpose that was close enough to mine it could be argued it overlapped, despite the fact that it was not the same. If my work had been in a different domain, I could have used the name. There are many names trademarked by multiple people for multiple purposes in the United States. I'm sure you know that.

I believe the protest designers knew something of intellectual property rights. I don't know if you've clicked through and looked at the images they were using - they carefully avoided using actual images from the cartoon, for instance, knowing those were protected.

Still, I see what you mean regarding the names specifically. I see some indication on the web that Aang as a boy's name existed before Avatar used it, but then again, so did "GI Joe". I still have the impression the site was pressured to take down products that did not feature any signs or names that were clearly "owned" by Viacom the way "Aang" is, and I note, as do the people supporting the protest, that Viacom is not bothering other people who are actually merchandising products with the characters pictures and names on them. This is a move to eliminate protest. To silence voices of dissent and criticism.
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