Legal Question in Intellectual Property in New York
Hi, this is a bit of a two-parter:
1. I have a question about trademark law. I am basically trying to do the responsible/thorough thing and make sure I am not infringing with a logo that I have made. I want to post the logo on the Internet but have resisted doing so yet. Being as specific as I can, I took a company's logo�which consists of two letters�kept the same font, color, etc., and then all I did was flip the two letters. My NEW logo has its own meaning and by my estimation the "likelihood of confusion" is miniscule considering mine basically means the opposite of what theirs does. If nothing else, wouldn't that qualify as parody?
Another part of this: I am not using my logo for monetary gain. I do not have a business. And nor do I want a trademark of my own for my new logo.
2. I'm obviously trying to avoid a cease and desist letter. But were I to receive one, what are the ramifications of one of those? Do I take it down, no harm, no foul? Or do I owe them money (which I don't have)?
By the way, my reason for writing this: I'd rather not pay a lawyer's fee, even for an hour, for what probably amounts to a simple yes or no question, i.e.: Am I or am I not infringing? Also: I'm not even in trouble yet! I'd like to at least wait until I am before coughing up a few thousand or so. Whatever the result of this, I thank you all the same.
�Lukas
2 Answers from Attorneys
Lukas, there is no "yes or no" answer here, but the fact that you openly tell us you coopted another company's logo at least in part suggests that the specter of infringement exists. It all boils down to market confusion and whether you use of the logo was seen as a sponsorship, endorsement, association or other affiliation with their brand. Regards to whether what you created here defaults to a true parody greatly depends on the facts. Keep in mind of course that a parody is a subset of fair use and fair use is a legal defense and the rights holder is always free to drag you into court and force you to prove out your use as fair. So if you plan on relying on that defense you better be right and that rightness better be obvious. In the trademark realm fair use is very narrow.
If there is a text mark embedded in the logo I would also be concerned about that as well. And as to whether they can demand money for your use of it, of course they can. that is not usually what happens but if your use was clearly in bad faith they might demand a licensing fee from you.
If you have no money to work with then stop playing around with business models that require more extensive legal attention. I mean, go sell crap on eBay and you won't have to worry about things like trademark clearance and fair use analyses, you know what I mean?
If you do insist on moving forward, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
If you would like to discuss further over a free phone consult, feel free to contact me anytime that is convenient. Our firm is now referred by the American Bar Association (see under the New York section):
http://www.americanbar.org/groups/delivery_legal_services/resources/programs_to_help_those_with_moderate_income.html
Kind regards,
Frank
www.LanternLegal.com
866-871-8655
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.
I would add that if it is satire, social commentary or art you would not be infringing, but it would not stop somebody from bringing a case, only help in the ultimate outcome.
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