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The Arrow Principle: Trademark Protection for Fictitious Brands

Can I start a newspaper called The Daily Planet?

Can a new beer company start selling a beer called "Duff?" (click here -- and you should also probably start watching "The Simpsons" -- if you aren't familiar with Duff beer).

Can someone roll out a new eyewear device called the "Opti-Grab?"

These questions and more are addressed in a new law review article entitled "Real-Life Protection for Fictional Trademarks" (via Entertainment & Media Law Signal) by Benjamin Arrow, a student at Fordham University School of Law. In short, Arrow argues that following the logic of two court decisions -- one in the United States and one in Australia -- taking any of the actions above would constitute a trademark injury to the fictional brands.

Arrow looks at some of the difficulties of applying trademark law to fictional brands, such as the tricky issue of whether a fictional brand is really being used in commerce. Using the Duff beer example, he says that

While Duff Beer is itself a brand name (albeit a fictional one) Duff would have had to have used the mark in commerce to reserve rights in the mark. That being so, the court would have to find that Fox and [Simpsons creator Matt] Groening’s use of “Duff” within the fictional world of Springfield is sufficient to establish priority in the mark such that another’s use of that mark would constitute trademark infringement.

Ultimately, Arrow suggests a legal framework for such disputes that "borrows analytical principles from copyright to determine what a use in commerce sufficient to reserve priority in a mark might look like for a fictional trademark, and to determine if a fictional trademark has been infringed."

As Mr. Arrow is a 3L in law school and appears to be the first one to have thought this through, I hereby declare this new approach in fictional trademark cases to be known as The Arrow Principle.

Posted by Bruce Carton on February 22, 2011 at 10:30 AM | Permalink | Comments (2)

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