Archived from groups: alt.games.coh (
More info?)
"Dark Tyger" <darktiger@somewhere.net> wrote in message
news:fbrnu0pi6undubqfnl1he20atgb5pkhupv@4ax.com...
| On Mon, 17 Jan 2005 03:53:59 -0500, "George Johnson"
| <matrix29@voyager.net> wrote:
|
| >"Dark Tyger" <darktiger@somewhere.net> wrote in message
| >news:nlimu05qcbrs9410gadjjt8kni311ie4vv@4ax.com...
| >| On Sat, 15 Jan 2005 21:06:44 -0500, "George Johnson"
| >| <matrix29@voyager.net> wrote:
| >|
| >| > Michigan J. Frog is not a Superhero, and is fine to use
| >|
| >| Stop. Not being a superhero doesn't make it "fine to use". Trademarked
| >| is trademarked.
| >
| > We're talking about a GAME.
|
| And? Trademark violations are trademark violations.
Nope.
http://www.zdnet.com.au/news/business/0,39023166,20278554,00.htm
Beatles group sues Apple over trademark
Now if the user decided to try to SELL this "Michigan J. Frog" character
there would be an issue.
At the moment, it honestly is not an issue.
Granted a lawyer could cause annoyance over it, but since "Michigan J.
Frog" has never been a superhero there is no room for distinction. The
troubling issue would be the UNIQUENESS of the name itself (versus a
character named "Scrubbing Bubbles" or "Billy Bass" whom have more generic
names).
Since at the moment the player is not attempting to SELL the character,
there is no real room for dispute unless the player decides to act in a
defamitory manner to Time/Warner/HugeConMegloCorps/AOL animated product
"Michigan J. Frog".
http://www.iusmentis.com/trademarks/crashcourse/rights/
Crash course on trademarks: The protection offered by trademark law
Contrary to popular belief, a trademark does not give its holder a monopoly
on the word, phrase, shape or color as such. Trademark rights are typically
granted on the basis of a registration. Part of the registration is an
indication of the goods and services that the trademark should protect. Only
commercial use of the trademark for those classes of goods and services can
be restricted by the trademark holder. Non-commercial use cannot be
prevented, except if that use harms the distinctiveness of the trademark.
What uses can be trademark infringement
A trademark is an exclusive right, which means that it gives its holder the
right to exclude (stop) others from using the mark. As the main aim of
trademark law is to prevent unfair competition, the exclusive right is
restricted to use in commerce. There are several different situations in
which somebody else might be infringing on a trademark. He could be using it
to sell the same types of products or services, or to sell slightly
different products, or for totally different products, or maybe for a
totally different reason.
Use for similar goods or services
The most common type of trademark infringement probably occurs when somebody
else sells a product or service under a name that in some way resembles a
registered trademark, and the products in question are the same or similar
to the registered products. For example, somebody might be publishing a
website under the same name as a trademarked name of a journal.
The main criterion here is whether the name of the product is confusingly
similar to the trademark. If they are, then potential buyers might
accidentally buy the wrong product, and that is exactly the kind of
situation that trademark law was designed to prevent. Similarity in itself
is not sufficient, the trademark holder must prove that there is a chance of
confusion.
Determining whether two things are confusingly similar is very complex. The
label of the product in question must be compared to the trademark as a
whole. Even if certain elements do correspond (for example the same type of
graphical symbols are used, and the various elements are arranged in a
similar way) the total impression might still be different. And it is the
total impression that is important, because consumers will rarely pay
attention to details when making a selection of a product.
The starting point should be the average, informed, cautious and attentive
ordinary consumer who is confronted with the allegedly infringing product. A
comparison is then made of the degree of visible, auditive and comprehensive
similarity between the label on the product and the trademark as registered.
The appearance of the trademark on the original product is irrelevant. The
exclusive rights are granted based on the trademark, and so it is the
trademark itself that must be compared against the allegedly infringing
product.
Two products are considered similar if the public would be of the opinion
that the services or goods in question are of the same company or of
economically linked companies. So, for example the public would not normally
expect a company that makes photocameras to also sell potatoes. A potato
distributor could therefore use the trademark Kodak for his potatoes,
without the photo company being able to do anything about it. Of course, the
more famous a trademark becomes, the bigger the chance that the public's
opinion would change. The trademark Coca Cola for example appears on many
different products, ranging from T-shirts to duvets. Given this information,
the public would easily think that somebody selling pillows with the Coca
Cola trademark on it had something to do with the Coca Cola company. Based
on this, the trademark holder can act against such use of his trademark.
Another important question is how distinctive the mark is. The more
distinctive a trademark is, the bigger the chance that confusion can occur.
Use for different goods or services
The registration of a trademark includes an indication of the goods or
services which it is intended to protect. This means that, in principle,
others are free to use the trademark for other goods or services. However,
there are some exceptions. As explained earlier, a trademark always runs the
risk that it loses its distinctive character, which could mean that the
trademark at some point is annulled.
It is also an infringement if the use of the mark is such that it harms the
trademark holder in an unfair way. The reputation or image that he has built
could suffer from somebody elses use of the mark. For example, the Dutch
holder of the trademark King (who makes peppermints) was able to
successfully stop someone else from selling condoms under the same
trademark.
[more at website]
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