Legal Question in Intellectual Property in New Jersey

We are creating branding for our company, and as part of the branding we are using an off-the-shelf product in the branding as a sort of "mascot." The product would accompany our company logo in a photo.

We've asked the manufacturer for permission to use their product in our branding and haven't received a reply. We own the off-the-shelf product, and we took the photograph and own the photograph in which the product is included. There are no logos on the product in question, although its design is unique.

What liability do we have, if any, in using a manufactured product as part of branding?


Asked on 10/02/09, 9:15 am

1 Answer from Attorneys
John Corbett Corbett Law Firm LLC

You have two issues. The first is potential liability for infringement of copyright. If the product has no copyright notice and the manufacturer has not responded to your inquiry, your risk is relatively low. You may still be subject to a later injunction preventing you from using the mascot, but you will probably avoid heavy damages and attorney fees. You can reduce that risk by having a search conducted to determine what copyrights are owned by the manufacturer, but that does not cover the situation where the articles are being produced under license.

The second problem is your investment. If you put a lot of time and money into an ad campaign and thereby develop some brand recognition, it would not be good to later find that you can't use the mascot and worse to find out that someone else can.

I have assumed that the mascot has not special meaning in relation to the products of anyone else. If that is not the case, there are some other considerations as well.

I hope that helps.

See also: http://info.corbettlaw.net/lawguru.htm

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Answered on 10/07/09, 11:04 am


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