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...explain to someone (an ad salesperson in this case) why they can't use a trademarked phrase such as "March Madness" in an ad without permission from the holder of the trademark? Our customer has used the phrase on fliers, so the salesperson doesn't see why I can't put it in the ad. He's probably pissed at me because if one of the other designers in my office had done the the ad, they probably wouldn't have been as geeky as me to make sure I could use the phrase. I used to work in sports marketing, so I know that there are people out there who keep their antennae tuned to unauthorized usage such as this. Am I being overly cautious in not wanting to use it?
Logo-Mechanix
02-28-2006, 08:50 PM
You know the guy who says "Lets get ready to rumble" at the start of boxing matches and other similar events. That guy has trademarked that phrase and if its used by someone else and he or I guess his lawyers find out he will sue you. If I am not mistaken the phrase March Madness is trademarked by the NCAA and I think they would pretty much sue their own mother for using it without permission.
Yeah, I know that and you know that. My problem is explaining this fairly basic concept to a salesman who doesn't want to hear it. He's been a salesman for many years and I've been a designer for only a handful. How do I tell him "I know better than you" without sounding like I'm being overly anal or disrespectful?
(Oh, and I did make it clear that I couldn't use it and I won't, but he seemed pretty peeved about it.)
Craig B
02-28-2006, 09:10 PM
I'm not sure how much more blunt you can be than saying, "Using a trademarked phrase when we don't have permission is illegal. If you can acquire that permission in writing, I would be more than happy to use it. If you can't get it in writing, I'm unable to use it."
Epectasis
02-28-2006, 09:10 PM
Yeah, I know that and you know that. My problem is explaining this fairly basic concept to a salesman who doesn't want to hear it. He's been a salesman for many years and I've been a designer for only a handful. How do I tell him "I know better than you" without sounding like I'm being overly anal or disrespectful?
explain it to his boss who will in turn explain it to him
balou
02-28-2006, 09:16 PM
(Oh, and I did make it clear that I couldn't use it and I won't, but he seemed pretty peeved about it.)
I say you've done your job. You refused and told him why. Let him stew. He's only peeved because he has to go back to the customer and tell them why March Madness won't work - which will make him look like he doesn't know everything about everything - so he's peeved. He'll get over it.;)
I guess the thing that annoys me most and is making it hard to explain to the salesguy is that there are too many folks out there using trademarked phrases left and right, so when I tell him that March Madness is a no-no, he can pick up some other paper and show me a handful of ads screaming March Madness. So when he asks, "they used it, why can't you?", is my only possible answer "because I'm smarter than them"?
idaho
02-28-2006, 09:43 PM
A good response would be "can't use it because if the owner of the trademarked phrase finds out, they will sue the your company, your boss and YOU personally, and will lose your job." If he still insists on using the phrase, go to your boss about it and let him or her make that decision.
reuber1
02-28-2006, 10:11 PM
Why do people find that clever anyway? "I copy other people's sh!t!!! Look how creative I am!!!"
Kinda like the "got milk?" thing, where EVERYBODY uses that from food to tampons. It's not witty or clever, but instead annoying.
Mynock
02-28-2006, 10:58 PM
Use "March Maddness" instead :)
Silence04
02-28-2006, 11:45 PM
Heres a little legal secret...
when someones trademark is overly used by other people for an continually/extended period of time, it practically gets put into a catagory called "saturated usage"... this means that the original owner of the trademark pretty much loses their rights to it in a court of law unless it makes a direct conflict with the owners sales or brand image (i.e. being in the same exact market).
with the saying "March madness" you don't really have anything to worry about as long as your not in the same industry as the original owner.
this is the same thing with the whole "Got Milk?" thing
or even "As Seen on TV"
its good to have a Trademark Lawer in the office next to you... :)
Ovaltine
03-01-2006, 02:34 AM
^I remember hearing something like this. But I think the trademark holder would have to ignor the infringement for a very long time (many years?) before it kicked in.
I believe Kleenex began to have a problem with this, because everyone started using the word Kleenex when referring to facial tissue. Kleenex came in ad defended their trade mark, and still do. Xerox had a similar issue, but I don't know if they've defended the word, or just let it go into the public lexicon.
Alex Olshevsky
03-01-2006, 07:57 AM
Why are you so worried? If that person wants to use the trademark, let him do. It is on his own. You should only have a print version signed by him.
Does designers carry responsibility for (probable) trademarks they use doing mock-ups? It is a "pretty nice" job to check every word on the layout :-)
It's a matter of ethics as well as a matter of covering one's own ass. Since our paper was designing the ad, we'd be responsible if NCAA got ticked off at the trademark usage. Yes, the client had it in the info they wanted included in the ad, but we're the professionals who are supposed to know better. By designing the ad, we're providing a service to our customer and accepting the responsibility to make sure it comes out right. You can't just slap a Coca-Cola logo or "Endorsed by Chuck Norris" on an ad an run it just because the customer signs off on it. That's illegal.
Alex Olshevsky
03-05-2006, 04:31 PM
You can't just slap a Coca-Cola logo or "Endorsed by Chuck Norris"
You have presented the well-known marks. In such a case usually something like "Coca-Cola Logo is a registered sign of Coca-Cola Corporation" is written.
But what about some "blabala" which you have never heard and seen before? How can you find out whether it trademark or not?
flutterby nut
03-05-2006, 05:02 PM
originally posted by Alex Olshevsky:
usually something like "Coca-Cola Logo is a registered sign of Coca-Cola Corporation" is written
you still have to have the company's permission before you write this....
what about some "blabala" which you have never heard and seen before?
hopefully it's also accompanied by an R for registered or a TM for trademarked....
Alex Olshevsky
03-05-2006, 05:33 PM
hopefully it's also accompanied by an R for registered or a TM for trademarked...
but if it is NOT, what then?
flutterby nut
03-05-2006, 06:19 PM
i'm not sure of the actual legal ramifications here...this is just my own humble opinion...these marks were established by someone to tip off the public at large that whatever words accompanied by them are registered trademarks...it therefore behooves any company with trademarked verbage to include the mark with it...if they don't, and somebody comes along and uses their trademark, how will their case hold up in court?...are we all supposed to sit around all day and search trademarks?...is it something we're all supposed to glean from thin air?...imho, if it doesn't have the mark, it's not protected by law and can be used...if it is protected by law, then use the mark so people know...just thoughts.
Alex Olshevsky
03-06-2006, 01:51 PM
are we all supposed to sit around all day and search trademarks?...
That it is I am writting about. A mad kind of job :-)
By the way, you wrote that even when something like "Coca-Cola Logo is a registered sign of Coca-Cola Corporation" is placed, a company's permission is needed. I have seen so huge number of advertisements (including local), and frankly doubt that most of them were done with the permission.
My point, is that you can use a trademark while you are not infringing upon owner's interests.
Thus, I am not a lawer :-)
There are those of us who believe that if a company goes to the effort of legally protecting its images, catch phrases, etc., regardless of the level of enforcement, trademarked/copyrighted/registered items legally cannot and should not be used unless the holder of these rights explicitly or implicitly permits one to do so.
Think about speeding. Just because everyone else is doing it, doesn't make it legal. Try telling the officer who pulls you over that you shouldn't be given a ticket because you didn't see the speed limit sign, and he'll remind you that it's your responsibility as a driver to be aware of the speed limit and follow it. Likewise, professional designers are supposed to be aware of issues regarding protected material.
By the way, you wrote that even when something like "Coca-Cola Logo is a registered sign of Coca-Cola Corporation" is placed, a company's permission is needed. I have seen so huge number of advertisements (including local), and frankly doubt that most of them were done with the permission. My point, is that you can use a trademark while you are not infringing upon owner's interests.
To continue the Coke example, if you're doing an ad for a store's grand opening and there are going to be free Cokes and you slap a Coke logo on the ad, while it's true that you are not hurting Coke by doing so, it is still illegal. Granted it will be unlikely that you'd be sued for misuse, but you also don't get pulled over every single time you speed. By putting a Coke logo on that ad, you imply to the consumer that Coke is somehow linked to what is advertised. So when someone goes to that opening, slips and falls and decides to sue everyone in sight, including Coke (since they seemingly are connected to the event), it will be much more difficult to argue that your use of their logo does not harm them.
I hope this doesn't come across as anal-retentive or holier-than-thou, but I'm really surprised and kinda disappointed that there are designers who could care less about infringing on others' protected material. If you picked up the newspaper tomorrow and saw your work in an ad for which you gave no permission and received no compensation, would you be as nonchalant as you are about using someone else's work?
urstwile
03-08-2006, 03:15 AM
If you CYA, then you don't have to worry about wearing that sloppy doctor's gown and holding the flap closed. :D
Might be that many get away with it, but there's always the one time someone gets pissed off, and legal ramifications ensue.
Silence04
03-08-2006, 04:39 AM
have you ever tried to trademark something? it takes 9 months and $500 just to find out if something CAN be trademarked. And thats is the ONLY way to find out if your crossing the lines of someone else's TM.
But just checking the trademark office or getting approved for a TM doesn't mean your "protected" or "safe". there is still what's called "use in trade," which supersedes any trademark. meaning you can still be sued for using someone else's term or mark even if they don't have a TM. So how can you find out if something exists when there is no way for you or the trademark office to know that it exists?
so don't be surprised when a little freelance designer isn't afraid of using a trademarked term (wether they realize it or not) for something that has little or no relevance to the original owner of the TM. typically a trademark can't even hold up in a different industry from the original.
anyways we are talking about "March Madness" here, not "Coke"... lets not be silly. a saturated term and an international brand are not the same thing by any means!!!
flutterby nut
03-08-2006, 05:10 AM
i read this www.fwlaw.com/marchmadness.html (http://www.fwlaw.com/marchmadness.html) the other day...i don't think it's a good idea to consider it a saturated term just yet...clearly, they're very interested in defending the trademark no matter what the cost...
Silence04
03-08-2006, 05:51 AM
that all has to do with sports/athletic/entertainment industry. of course they will try to defend their trademark in the same industry.
flutterby nut
03-08-2006, 06:03 AM
but if i advertise a "march madness" mattress sale (substitute any product here), aren't i also attempting to capitalize on the trademark, the time of year, the tournament as well?...and therefore, infringing on the trademark?...just curious...
Silence04
03-08-2006, 06:38 AM
Where would this Ad be running? would there be any direct conflicts with the NCAA's Advertising? I mean, if you were flat out showing that your trying to tie it with the NCAA's March Madness it would obviously be easy to prove that in court.
But what if that mattress company also has a June Madness Sale and a December Madness Sale? do you think they would be restricted from doing a "madness" sale in the month of march?