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Understanding Intellectual Property - Trademark

What is a trademark?
A trademark is a word or symbol that indicates the “origin of goods,” meaning it allows the public to identify the company that is ultimately responsible for a particular product. It is also intended to enable consumers to have assurance about a product's quality, so consumers may be more likely to buy it.

When a consumer sees the “BMW” mark on a car, there is a lot they will assume about the engineering, comfort and enjoyment they will have driving the car. That connection between the trademark (“BMW”) and the perceived qualities of the product (luxury, power, engineering excellence) has a lot of value in the market.

Companies invest a great deal of time and money in developing that association between their mark and the products, because it can have a significant impact on sales. Reputation and brand mean a lot. The value itself is something companies work hard to protect.
What are trademark rights?
The concept behind trademark rights is that the owner of the mark has the legal right to stop others from trading off of the value of the company’s brand and reputation. They can do so by stopping the use of any confusingly similar trademark.

So if an unknown car company wants to use the mark “VMW” to brand its new car, BMW will be able to stop the company based on the similarity of the marks and products.
Often trademark owners will also secure rights in other related goods that they want to sell – for example, t-shirts.
What does trademark mean for Teespring creators?
Teespring creators are not allowed to use third-party trademarks unless they have permission. These campaigns would be terminated once reviewed and identified.

This design uses the trademarked name "Red Sox," which is a well-known and registered mark owned by the MLB. The MLB owns the exclusive rights to use "Red Sox" on merchandise.

Jeep owns a trademark protecting its name and iconic logo. This campaign would be suspended for its unauthorized use of "Jeep".

Use of team colors has been found to infringe the team’s trademark where the colors and other elements of the design indicate a particular team.

What if the logo itself isn’t used?
The first example above shows a mark owned by Major League Baseball. Professional and college team logos are protected by trademark. But the legal protection extends well beyond the team name and logos themselves. If a design shows a combination of elements that clearly indicate a particular team, then that design may be considered infringing as well.

For example, if a shirt design includes an image of a baseball, a reference to Boston, and the colors used by the Red Sox team, the trademark owner may have a claim for infringement.

What’s the best test to use?
Courts have prohibited the use of various elements of a brand, even if the exact logo or name isn’t used. So the best way to think about when a design is problematic is to determine whether the design is likely to confuse consumers about the source or sponsorship of the goods upon which the design is affixed. If an ordinary consumer is likely to think that the goods come from the brand owner, or are sponsored or licensed by the brand owner, then there is likely trademark infringement.
What about “fair use” of a Trademark?
You might be able to use someone else's trademark in your own work, if you do it in a way that is considered legally permissible. However “fair use” applies in fairly limited circumstances and is not necessarily the same as “freedom of speech.”

“Fair use” is a very tricky concept, even for experts, and the rules vary significantly by state/country. Generally speaking, in the US, there are two types of trademark fair use. Descriptive fair use permits use of another's trademark to describe the users products or services, rather than to indicate the source of products or goods. This is usually appropriate where the trademark concerned has a descriptive meaning. For example, a glass manufacturer can use the term "window" even if Microsoft owns trademark rights in the mark "Windows" for software. Nominative fair use, on the other hand, permits use of another's trademarks to refer to the trademark owner's actual goods or services. Nominative fair use is generally allowed so long as (i) the product is not readily identifiable without use of the trademark; (ii) only so much of the mark is as reasonable necessary to identify the mark is used and (iii) use of the mark does not suggest sponsorship. Nominative fair use often is applicable only to word marks (not logos) and generally applies in the context of comparative advertising, parody, and certain other non-commercial uses.

Because Teespring feels strongly about the importance of the freedom of creative expression we do our best to consider “fair use” as part of our content review policy.  That being said, even if you think you’ve created a work covered by “fair use," you should talk to an attorney prior to using it on Teespring. While some uses might appear “fair” to you, please understand that such works may be removed during our internal review process or in accordance with its Notice and Takedown procedures.  While we are happy to consider any fair use arguments you might have, we ask that you please respect our right to make the final judgment on this issue.
Ultimately, you take full responsibility for the works you upload and display on Teespring and your use of the Teespring website indicates continued acceptance of this responsibility.

Other Resources

You can learn more about trademark and copyright using the following resources:

USPTO.gov - The U.S. Patent and Trademark Office site offers a FAQ section, and a search engine where you can check for registered marks.

Copyright.gov - The U.S. Copyright office offers a helpful FAQ.

Trademarkia.com - Trademarkia also provides an easy-to-understand FAQ section and search engine.

Licensing Pages - Many brands and organizations have pages (look for a “Terms” page) that outlines their owned copyrights and trademarks.

AVVO - A website that allows users to ask for and receive free legal advice from reputable lawyers.

General Copyright: http://en.wikipedia.org/wiki/Copyright

General Trademark: http://en.wikipedia.org/wiki/Trademark

General Publicity Rights: http://en.wikipedia.org/wiki/Personality_rights

Australia: http://www.copyright.org.au/find-an-answer/

United Kingdom: http://www.ipo.gov.uk/copy.htm

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