Re: Are drawings of products trademark infringements?
Generally, one can't succeed on a Lanham Act (US Federal trademark
law) claim unless one can demonstrate (in the words of 15 USC 1114
1(a)) that the use is "likely to cause confusion, or to cause mistake,
or to deceive". In the case of a famous mark, though, "trademark
dilution" or "injury to business reputation" may also apply (the
"blurring" or "tarnishment" of the trademark through use in otherwise
unrelated or unwholesome settings respectively) irrespective of
confusion and deception standards. See the commentary at
http://www.goodwinprocter.com/publications/levy_i_02_04.pdf , and note
that the intention of the FTDA was partly to implement international
trademark treaties (see http://www.inta.org/dilution/ ).
State law varies quite a bit, however, and not all states have adopted
the equivalent model bill (http://www.inta.org/policy/mstb.html). So
an outlet like CafePress is wise to have a broad ban, especially since
a "novelty item" like a T-shirt or coffee mug is relatively likely to
cause confusion with a promotional item from a trademark holder.
Injunctive relief is common, but it's very unlikely that damages would
be assessed (IANAL, etc.) against a distributor of clip art not
deliberately intended to contribute to infringement by its recipients.
Therefore I'd steer clear of combining product names and images (e.
g., "HUMMER" together with a bloatmobile), but a drawing labeled
"mobile phone" is probably fine even if it looks a lot like a Nokia's
"trade dress". I don't think I'd use Duracell's copper top, though.
Cheers,
- Michael
P. S. A drawing of Calvin isn't necessarily a trademark, but it is a
copyrighted character -- what Don Quixote would have been if Spain had
had today's copyright law in Cervantes' day. "Calvin and Hobbes" is a
trademark.
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