Live from Comic-Con . . .

By Geoffrey Gerber

It has been a long time since my last posting. In part, this has been because I have been trying to get enough work off of my desk to attend Comic-Con International in San Diego. Now I am here, and it is a wonderful world of fair and not-so-fair uses of intellectual property. I'll have enough material to blog about for a month. As busy as it is keeping me, I'll keep this post short.

How about a bumper sticker. Can't get much shorter.

This image is from the goats.com website and may have been around for awhile, but I first saw it on a T-shirt here at Comic-Con. I found it amusing (and you can find the T-shirts and bumper stickers at the Dumbrella booth No. 1335 at Comic-Con), but it raises a number of fair use concerns, if it is not a licensed use.

The creator, Jonathan Rosenberg, apparently leveraged this marketable item from a witticism in one of his online comic strips from August 8, 2003. LORD VOLDEMORT is a registered trademark for toys and is owned by Time Warner Entertainment Company LP. None of the merchandise I saw at Comic-Con bears any trademark registration indicia. If it is not a licensed use, would the use of "Voldemort" on T-shirts or bumper stickers infringe Time Warner's registration for LORD VOLDEMORT? Assuming that Time Warner has a valid registration and priority (Registration No. 2,669,605 for toys issued December 31, 2002, Time Warner abandoned Application Serial No. 75,857,772 for clothes on August 29, 2003), and that a fact finder would find a likelihood of confusion, Rosenberg would presumably rely on the nominative fair use doctrine.

This doctrine is explained in Playboy Enterprises, Inc. v. Terri Welles, 279 F.3d 796 (9th Cir. 2002). In that case, Playboy sued Terri Welles, its 1981 Playmate of the Year, for her Internet use of certain marks on her own website that identified her as the recipient of that honor. The Ninth Circuit applied its test for nominative fair use:

"First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder."

It affirmed a ruling in Ms. Welles favor. Would such a test help Voldemort's fictional campaign or end it before it reaches New Hampshire?

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