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Further, I would argue that you cannot use the character even if you explicitly state you are not Disney because Disney's primary consumers are children and eve
by caf 8y ago
Further, I would argue that you cannot use the character even if you explicitly state you are not Disney because Disney's primary consumers are children and even with a disclaimer the mere use of the mark would likely cause consumer confusion.
Ahh, but were I opposing counsel I would argue that the children young enough to be unable to read and comprehend the clear disclaimer that this is not a Disney production are also too young to have made the purchasing decision and therefore cannot be considered a market participant / consumer.
- elliekelly 8y agoI would welcome you as opposing counsel because I would mop the floor with you. It's well-established that children can be and are consumers. In fact, both the FTC and CPSC have special regulations applicable to advertising and products for consumers under the age 12. Could you be convinced to take over for opposing counsel on my current docket? I would be most appreciative.
- caf 8y agoWe're not talking about under age 12 here though, we're talking about under age 5. And furthermore it is not convincing unless you find a precedent involving toddlers as consumers specifically in a trademark / passing-off case.