Fair Use in Trademark Law – It’s Black & White

I’ve discussed fair use in copyright law, but I saw this ad a little while ago for a car wash (at a Chevron Station, no less) and I wanted to do a post on the differences of fair use in copyright law as opposed to trademark law (NOTE: This applies to U.S. law only).

 Copyright Fair Use:

There are four factors (with sub-factors) which a court may weigh to determine if there is copyright infringement:

  1. Nature of the Work
    • Factual Work? (facts–not necessarily nonfiction–are less protected by copyright law)
    • Fictional Work? (fictional works are very strongly protected by copyright law and require more transformation than facts to avoid infringement)
    • Was it published by the author? (unpublished works are VERY protected by copyright law – you would be fighting an uphill battle if you infringe an unpublished work)
  2. Purpose of the Use
    • Commercial use? (not always infringement)
    • Nonprofit/Educational use? (not always fair use)
    • TRANSFORMATIVE? (did you transform the original content into a new work?)
  3. Amount Taken
    • Was it the ‘heart’ of the work?
  4. Effect Upon the Potential Market
    • Does it replace the need for the original?

 

There is a LOT of wiggle room in fair use for copyright law, because the factors are just that: factors. Factors are weighed individually, and even if you had 3 in your favor and 1 against you, that 1 factor could be what the court decides is the most important and declares your use infringement. Or, it could be the other way around with 1 for you and 3 against you, and the court still decides it’s not infringement. There’s a lot of grey area here, and it’s never guaranteed how a court might come out.

 

Now, compare that with trademark law’s version of fair use, below.

 Trademark Fair Use:

  1. Descriptive use
  2. Nominative use

That’s it.

Examples of Descriptive Uses:

  • If you advertise that you sell repaired goods or repair services to specific brands.
  • Comparative advertising (comparing Brand X to Brand Z), so long as it’s truthful.
  • If you use a brand name item in your product, such as Brand X mayonnaise in your tuna salad product.

Example of Nominative Use:

  • Referring to another’s trademark, such as “I toured the Sony facility with a group” or “I am writing a review of Minecraft” — the use is to refer to the company which would otherwise be difficult to identify if you couldn’t use their name.

 

Another potential fair use in trademark law would be figurative use (e.g. ‘the Bentley of Computers’). If confusion is created as to the source of the product or service, such as if a consumer would be led to believe that Bentley now makes computer towers, then figurative use would not be considered fair use–it would be trademark infringement. Check out this article to find out more about figurative use.

 

Back to the picture that started this post:

 

ad for angry bird car wash

 

 

There are two glaring issues here:

They are literally glaring at you.

 

angry bird blue for the birds

 

 

 

 

 

 

 

 

 

1. “Angry Birds…”

First is the fact that they used (with capital letters) “Angry Birds,” which is obviously a trademark of Rovio, who made the game, Angry Birds (see the blue Angry Bird above).

 

2. The birds on the telephone cable.

The second issue is the image of the birds on the ad that are presumably pooping (angrily?) on your car. It just so happens that I love watching animated movies, and I am very familiar with Pixar’s short, For the Birds. The birds in the ad are clearly from ‘For the Birds’.

 

What is the likelihood that Gotcarwash.com had a license to use Rovio’s Trademark or Pixar’s Copyrighted material in their car wash advertisement?

 

0% chance they had a license, in my opinion.

 

Why is that? Because Rovio and Pixar aren’t in the car washing business, and there wasn’t any copyright/trademark notices on the sign that usually occurs when licensed intellectual property is being used.

 

So?

Fair enough, you want to know what my point is. My point is to never put yourself in the position that company did to get sued by the likes of Pixar and Rovio. Now, I don’t know if Pixar or Rovio ever got wind of this ad and sued or sent a C&D, but that doesn’t matter for the sake of this article.

 

Look at their advertisement, and look at what constitutes fair use in trademark and copyright law. Don’t be like those people — you can easily be more creative to serve your company’s needs than to infringe the copyright and trademark rights of someone else–ESPECIALLY IF THAT SOMEONE ELSE HAS A BAZILLION DOLLARS AND A KICK-ASS LEGAL TEAM!!