The Intellectual Property Implications of Marketing a Fictional Product

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6 Responses

  1. Shag from Brookline says:

    I can imagine clever IP attorneys utilizing “The Arrow Principle” to fill their financial quivers.

  2. Gerard Magliocca says:

    This is a great issue that I’ve never thought about before. Kudos to Ben!

  3. prometheefeu says:

    I thought trademark violations had to be for similar products. The Simpsons is not a beverage.

  4. Dave says:

    Interesting post/Note! I think copyright may do more work here than may be immediately obvious, because copyright (unlike TM) is not constrained by the use in commerce principle. So if you were to market off-brand “Duff beer” products, that may not create TM issues, but if the products reproduce the iconic Duff beer can, that could infringe the owner’s rights in the can as an original work of authorship instead (even if “Duff Beer” itself would be too short a phrase to merit copyright in itself).

  5. Mike Madison says:

    “Fiction and IP” casts a broad shadow. My former student Daniel Brean published a Note in 2007 titled “Keeping Time Machines and Teleporters in the Public Domain: Fiction as Prior Art for Patent Examination,” 12 Pitt. Tech. L. & Pol’y 2 (2007) [http://tlp.law.pitt.edu/wp-content/uploads/2009/10/Vol_12_Brean.pdf].

    Bruce Boyden’s work on copyright in games popped up a short time ago in the context of a blogosphere conversation about whether college Quidditch players infringe any rights of J.K. Rowling. [http://madisonian.net/2007/02/07/quidditch-and-copyright/]

  6. Anonymous Coward says:

    What I find interesting is the degree to which computer games blur the line. You can play some online game where your character walks into Trader Gunnald’s General Store and exchanges fictional money for fictional products. It isn’t really any less fictional just because it’s interactive — nobody is actually exchanging money for a shovel, they’re just flipping bits around in a computer the same way a filmmaker does when editing digital video. Neither the money nor the shovel is real.

    But then, so it is in derivatives trading. And if you can convince some poor sap to pay you real honest US dollars in exchange for giving his character the fictional shovel, things start to get real.