5 ms·

It's cute, but I suspect the rightsholders for the character won't be thrilled about the name appropriation.

rbanffy 3y ago
They are two very different products in completely different markets. In many jurisdictions any such lawsuit would have no standing.
- chaps 3y ago
  Being legally right and being morally right are often two very different things though. Like, they even have the full domain name of the original thing. If I were the owner of the original video and the subsequent film, I know I'd be, at least, annoyed.
  - beeburrt 3y ago
    What's the original thing? Sorry, I don't know the reference.
    - 98codes 3y ago
      https://www.google.com/search?hl=en&q=marcel%20the%20shell https://www.google.com/search?hl=en&q=marcel%20the%20shell
      - rbanffy 3y ago
        If I were the author of the original, I'd be thrilled. And would offer the character as the project's mascot tied to a set of conditions based on the success of the product so that, in case it fails to gain traction, it should be renamed and allow the name to be used by another product. It's more or less the same spirit as the Roddenberry estate allows someone to use the names - you are allowed to build a warp drive, as long as it warps spacetime and allows FTL travel.
- hn_throwaway_99 3y ago
  That's not correct. In fact, there was a relatively recent Supreme Court case where a "joke products" maker (I don't remember the exact products, I think they were dog toys or something) basically made them look like Jack Daniels products. They argued it was a spoof, so should be protected. The court ruled against them, saying that even though they were selling in a totally different arena, they were still coasting on the public's familiarity with the Jack Daniels brand, and someone might think that JD themselves had authorized the spoof products. I'm not sure that all applies here, but "Marcel the Shell" obviously belongs to and is associated with one specific brand, and the author of this nix shell is riding on that. It's not like when someone tries to trademark "Apple" in 2 different contexts.
  - gnopgnip 3y ago
    The Supreme Court case didn't find the dog toy satirizing Jack Daniels was infringing, just that it was possible and a jury should decide rather than the case being dismissed.
    - mistercheph 3y ago
      Right, the court's holding simply held that a trademark infringement claim concerning the commercial use of a trademark as a trademark was outside the scope of the Rogers threshold test ("the claim must be dismissed unless the complainant can show either (1) that the challenged use of a mark “has no artistic relevance to the underlying work” or (2) that it “explicitly misleads as to the source or the content of the work.”") and is moved directly to the next step which is the Lanham Act's "likelihood of confusion" analysis. A trademark claim here might not be dismissed under Rogers, but I don't think there is any jury that could ever find that consumers were likely to become confused about whether or not the command line tool Marcel the Shell was affiliated with the independent film cartoon character, and even if that could be established, unlike Jack Daniels, what $$$ damages were caused in trademark dilution? 3 figures?
jawns 3y ago
Just using the name "Marcel the Shell" probably isn't enough to be legally actionable. Plenty of books, films, and TV shows have the same titles, which indicates that titles alone typically don't enjoy the protection of exclusivity. Copyrighted characters and trademarks have a better chance of that, but those aren't being appropriated here, just the name. "Marcel" is also a common first name, which makes it less likely that the creators of the film can claim any exclusive use of it, and "the Shell" is completely descriptive in this context, so unlikely to cause copyright issues.
- deleted 3y ago
  [deleted]
CharlesW 3y ago
On the bright side they're unlikely to ever see it, since this one will never appear on the first few pages of search results without additional search terms.
dopidopHN 3y ago
Marcel is just a name. Like Julien or Kevin.

They are two very different products in completely different markets. In many jurisdictions any such lawsuit would have no standing.

chaps 3y ago
Being legally right and being morally right are often two very different things though. Like, they even have the full domain name of the original thing. If I were the owner of the original video and the subsequent film, I know I'd be, at least, annoyed.
- beeburrt 3y ago
  What's the original thing? Sorry, I don't know the reference.
  - 98codes 3y ago
    https://www.google.com/search?hl=en&q=marcel%20the%20shell https://www.google.com/search?hl=en&q=marcel%20the%20shell
    - rbanffy 3y ago
      If I were the author of the original, I'd be thrilled. And would offer the character as the project's mascot tied to a set of conditions based on the success of the product so that, in case it fails to gain traction, it should be renamed and allow the name to be used by another product. It's more or less the same spirit as the Roddenberry estate allows someone to use the names - you are allowed to build a warp drive, as long as it warps spacetime and allows FTL travel.
hn_throwaway_99 3y ago
That's not correct. In fact, there was a relatively recent Supreme Court case where a "joke products" maker (I don't remember the exact products, I think they were dog toys or something) basically made them look like Jack Daniels products. They argued it was a spoof, so should be protected. The court ruled against them, saying that even though they were selling in a totally different arena, they were still coasting on the public's familiarity with the Jack Daniels brand, and someone might think that JD themselves had authorized the spoof products. I'm not sure that all applies here, but "Marcel the Shell" obviously belongs to and is associated with one specific brand, and the author of this nix shell is riding on that. It's not like when someone tries to trademark "Apple" in 2 different contexts.
- gnopgnip 3y ago
  The Supreme Court case didn't find the dog toy satirizing Jack Daniels was infringing, just that it was possible and a jury should decide rather than the case being dismissed.
  - mistercheph 3y ago
    Right, the court's holding simply held that a trademark infringement claim concerning the commercial use of a trademark as a trademark was outside the scope of the Rogers threshold test ("the claim must be dismissed unless the complainant can show either (1) that the challenged use of a mark “has no artistic relevance to the underlying work” or (2) that it “explicitly misleads as to the source or the content of the work.”") and is moved directly to the next step which is the Lanham Act's "likelihood of confusion" analysis. A trademark claim here might not be dismissed under Rogers, but I don't think there is any jury that could ever find that consumers were likely to become confused about whether or not the command line tool Marcel the Shell was affiliated with the independent film cartoon character, and even if that could be established, unlike Jack Daniels, what $$$ damages were caused in trademark dilution? 3 figures?

jawns 3y ago

Just using the name "Marcel the Shell" probably isn't enough to be legally actionable. Plenty of books, films, and TV shows have the same titles, which indicates that titles alone typically don't enjoy the protection of exclusivity. Copyrighted characters and trademarks have a better chance of that, but those aren't being appropriated here, just the name. "Marcel" is also a common first name, which makes it less likely that the creators of the film can claim any exclusive use of it, and "the Shell" is completely descriptive in this context, so unlikely to cause copyright issues.

deleted 3y ago
[deleted]

CharlesW 3y ago

On the bright side they're unlikely to ever see it, since this one will never appear on the first few pages of search results without additional search terms.

dopidopHN 3y ago

Marcel is just a name. Like Julien or Kevin.