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Brand Characters & Work via Trademarks
Toucan Sam, Betty Boop, Inspector Gadget, Mickey Mouse – besides being beloved characters, each has also been the focus of litigation in terms of their value as trademarks for their respective owners and/or creators. According to the United States Patent and Trademark Office, "a trademark is a brand name…includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services." The law that governs trademarks also governs unfair competition and is codified in the Lanham Act, US Code Title 15.
Putting one's mark on something to indicate where it came from and who created it has its beginnings in the Middle East and the people of that region's use of stone seals in early 3500 BC. Romans used the marks for their swords, bakers in medieval England used pinpricks on loaves of bread, Parisian furniture makers in the 1700s signed their work, and the Chinese adhered their marks on porcelain. The first US Federal Trademark legislation was passed in 1870, and the first US trademark was granted to Averill Paints' eagle logo.
From stone seals to animation cells, we've come a long way. Today, the protection offered by trademarks is being applied to characters from cartoons, comic strips, television shows, and animated features. Trademarks allow for a quintessential right to license and merchandise – without it we could not have Angry Birds t-shirts, Kung Fu Panda pajamas, Disney Princess dolls, or any of the toys in a Happy Meal.
Some key points:
There are two levels of trademark protection – Federal and State. The Federal registration is stronger in value, but more expensive and complex.
There is a difference between the ™ and the ®, which means it is registered.
You should use an experienced attorney to register the trademark, as it is actually a litigious process.
Trademarks are designated by categories/classes. That is why you can have Delta Faucets and Delta Airlines. Also, there is a different trademark for SpongeBob videos, SpongeBob lunch boxes, and SpongeBob apparel.
Unlike copyrights, you do need to renew the trademark every five, then ten, years to confirm the mark is still in use in commerce. And they don't send reminders.
No international trademarks – trademarks are also limited by geography to apply only to where actual use has been established.
So how did the characters fare in their cases?
Kellogg's sued the Maya Archeology Initiative because of their use of a toucan bird similar to their Toucan Sam mascot for Foot Loops. If you look at the two images, it is hard to say they would be confused with each other, so that case settled.
Betty Boop did not fare well for Fleischer Studios, Inc. This August 2011 decision was quite controversial. Fleischer lost the case because the court said it did not prove that the trademark registration was timely to offer protection. Lesson here: register on time!
Cookie Jar Entertainment sued Inspector Gadget Home Inspections for trademark violation of its character. The defendant, owner Carlos Rodin, successfully defended himself because of the amount of equipment he actually uses in home inspection, and that this had nothing to do with the character.
Mickey Mouse and all Disney characters are trademarked in various categories for the various products they place their images on. That doesn't stop the violations, though and every year Disney has dozens of cases in court enforcing their rights. So, muralists are not permitted to do a Disney-cartoon-inspired mural for a children's room unless they pay Disney the licensing fee.
The main lesson is that trademark registration is important and valuable, because your characters are valuable. Register and protect them – they represent you and your brand. Give them every chance to succeed.