Legal Question in Intellectual Property in New York

Is a hand-crafted object intended for sale bearing part of a logo or a recognizable symbol covered under fair use?

Is the answer to that question different if it is being sold at a small craft fair in person or on a craft website with a global customer-base such as Etsy?

If it is not covered, does putting a disclaimer like "This product/store is not endorsed, sponsored by, or affiliated with Company X" somewhere plainly visible near the object make it acceptable?

I assume this is normally a case-by-case situation, so I suppose a specific example may be necessary. If I were to list a sewn cloth pouch with the Green Lantern symbol embroidered on it for $10 (with a stock of 12) on Etsy, with the disclaimer above in the listing, would this be something I could receive a cease & desist order, get brought to court, or get into any other legal trouble?

Thank you!


Asked on 6/17/11, 12:24 pm

1 Answer from Attorneys
Kevin B. Murphy Franchise Foundations, APC

As a Franchise Attorney I say the following. If you another's log without their permission you can (and probably will) be sued for trademark infringement. There is no "fair use" defense to this. Fair use applies in a very limited context to copyright infringement, not trademark infringement. Consult with a good trademark or franchise attorney in your area for specific advice.

Mr. Franchise - Kevin B. Murphy, B.S., M.B.A., J.D.

Franchise Foundations, a Professional Corporation

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Answered on 6/17/11, 12:28 pm


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