Intellectual Properties and the Protection of Fictional Characters: Copyright, Trademark, or Unfair Competition?

By Dorothy J. Howell | Go to book overview
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4
Trademark Protection and Unfair Competition

BASIC PRINCIPLES OF TRADEMARK ACTIONS

It is essential to review early trademark cases for the basic principles before considering the application of this property to literary works, dramatizations, and, most particularly, fictional characters. The intellectual property known as trademark is protected pursuant to federal statute and through the laws of the several states. 1 The violation of trademark rights is a form of unfair competition, which may be sanctioned through either codified or case law in the federal or state courts.

In a sense complementary to copyright in affected properties, trademark protects one or more names, to some extent dissociated from content or expression. Trademark is a unique manifestation of the source of a product--for the purposes of this work some component of literary property. If the trademarked name is not unique, it must have acquired secondary meaning among the consuming public in order for the necessary association with a specific source to attach. Otherwise the name is in general usage, or generic.

In addition to outright misappropriation of a mark ("palm

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