LogFAQs > #961528310

Dikitain posted...

The idea now is they are going to let the copyright expire but keep the trademark (which never expire). What does that mean?

Trademarks are a protection of a company's "brand" - i.e. their logos, slogans, name, etc., whereas copyright is a protection of a specific creative or intellectual work or expression. Much like copyright, specific characters cannot be universally trademarked, except as part of a work (so, for instance, Disney doesn't have a trademark on Mickey Mouse the character, but does have multiple trademarks on him for each medium he's in, from toys to video games to school supplies). And yes, Disney is free to keep their trademark in Mickey in perpetuity, even if the works he's in lapse into the public domain.

Copyright law and trademark law, as well as their intersection with the public domain, gets very tricky very quickly and I would be lying if I said I had an in-depth understanding of it, but my understanding is that if some of the older Disney works featuring Mickey Mouse lapse into public domain, others are free to create copies of that work without modification or may create derivative works (for instance, their own depiction of Steamboat Willie) so long as the work is sufficiently differentiated from Disney's work and nothing is present to suggest that the work was made by or sanctioned by Disney itself. You could keep the character of Mickey Mouse (since he's part of the original story, which is now in the public domain), but you might have to depict him differently than Disney (for the same reason why you can do an animated movie of Cinderella without Disney's permission - public domain story - but you can't draw her the way Disney does).

The governing rule of "trademark" is "likelihood of confusion" - i.e. how likely is someone to confuse your "knock-off" product with the real deal. For instance, let's say I run a plumbing business - I couldn't call it "Starbucks Plumbing" or "Wal-Mart Plumbing", because "Starbucks" and "Wal-Mart" are made-up words that are trademarked by their respective companies. However, I would probably be alright to call it "Apple Plumbing" or "Amazon Plumbing" - even though "Apple" and "Amazon" are company names for two tech giants, both are generic words (which cannot be universally trademarked) and neither of those two companies are in the plumbing business, so the likelihood for confusion is low. However, if I tried to use the same or similar-looking logos as Apple or Amazon, or if I switched from a plumbing business to a computer repair business, I would be much more likely to run afoul of copyright law, because now I'm entering into a business line Apple and Amazon do participate in and am using similar iconography, so the odds of a customer assuming I'm affiliated with their brand is much higher.

Complicating things further is that US trademark law affords wide latitude to particularly famous marks. The Trademark Manual of Examining Procedure has an entire section on Fame of the Prior Registered Mark (TMEP 1207.01(d)(ix)) which states, in part, "As the fame of a mark increases, the degree of similarity between the marks necessary to support a conclusion of likely confusion declines." Given how famous Mickey Mouse is and how integral he is to Disney's brand, Disney would have a strong case for trademark infringement for anyone who does decide they want to make their own variant of Steamboat Willie or other early Disney stories. Again, I'm not sure the particulars of how this intersects with laws regarding works in the public domain, but I'm guessing Disney's lawyers have already spent considerable time and effort figuring that out and preparing legal arguments for when it inevitably happens.