4 ms·

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 w

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?

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?