Thursday, May 20, 2021

Overlapping Trademark and Copyright Protection

By Lloyd Jassin
Copyright, Trademark and Trade Dress Protection

Like Madame Curie and Mariah Carey, copyrights and trademarks are sometimes mistaken for each other - the irony is that the fundamental purpose of trademark law is to avert consumer confusion.  

Trademarks protect brand recognition and reputation. They do so by preventing others from copying source identifies such as words, slogans, illustrated characters, series titles, and logos, that allow consumers to distinguish the source of one product or business from another. Copyright law protects original works of authorship, including literary, dramatic, musical, artistic and sculptural works.

While copyrights and trademarks protect different property interests, brand owners can use both to protect their exclusive rights.  Take, for example,  Trix cereal. The way the Trix cereal box is dressed up for sale at your local market, with bright colors and bold graphics, and other branding elements, conjures up an association with General Mills. The body of law that protects the overall look of the Trix cereal box is called trade dress - a subset of trademark law. Trademark law also protects the Trix name, logo, cereal mascot, and the marketing slogan, Silly Rabbit, Trix is for Kids.  

Coexistent with trademark protection, General Mills has in its intellectual property arsenal copyright law with which to protect their cartoonish cereal mascot against unauthorized copying. Currently, enforcement opportunities are available to copyright owners that are not available to trademark owners. Only copyright owners can use the Digital Millennium Copyright Act (DMCA) to have infringing online content removed without resorting to litigation. Internet service providers have a legal obligation to put the content back up if the person tagged as an infringer in a take down notice sends a counter-notice stating they believe the copyright owner is wrong. Unless the copyright owner commences a lawsuit within 10 – 14 days of receiving the counter-notice, the content goes back up. The prerequisite for filing a copyright infringement lawsuit is registration with the U.S. Copyright Office. If you register a work before it has been infringed, you may be entitled to receive statutory damages. If you can prove the infringement was willful, you may be entitled to the maximum amount of statutory damages, which is $150,000.  Otherwise, you might only win actual damages. Statutory damages provide an incentive for brand owners to register their copyrights.

Finally, patent law, another layer of intellectual property, protect General Mills' proprietary process for turning a yummy slurry of "sucrose, fruit puree, and calcium carbonate" into gay little corn puffs in a rainbow of colors. Three legal theories . . . one silly rabbit. 

The Trix rabbit's attempts to use disguise (e.g., balloon seller, Bugs Bunny) and deception to flimflam children into giving him a bowl of cereal are cartoon con games punishable in the court of cartoon justice. However, when deception is used to steal customers from General Mills, that constitutes trademark infringement and unfair competition. 


 How to Distinguish Kix from Trix Brand Cereals (Satire)

“Atomic Bomb” ring from a box of Kix cereal? You can't make this stuff up.
KIX® has been dedicated to helping kids get a bright start to their day since 1937. - General Mills
In 1947, General Mills offered kids a new way to light up their day -- with a Kix (not Trix) atomic "bomb" ring cereal box premium.  Kids would send in a cereal box-top with a small amount of change taped to it, and receive in the mail a Kix Atomic Bomb Ring. Atop the ring was a nuclear warhead that held a secret compartment.  A cold war lens of history found in a box of Kix cereal.

According to the Toy Tales website, after removing the red base of the warhead, kids could look "through [a] toy spinthariscope’s (a device for observing individual nuclear disintegrations) plastic lens while in a dark room [that] revealed flashes of light."      

The ring's instructions read, "you'll see brilliant flashes of light in the inky darkness inside the [ring's secret] atom chamber."  The frenetic streaks of light were caused by polonium alpha particles in the chamber striking the ring’s zinc sulfide screen.  No worries. The traces of polonium, a rare and highly radioactive metal discovered by Madame Curie (not Mariah Carey), only had a half-life of 138 days. 

During WWII, General Mills (not a real general) helped the war effort by working on torpedoes and gun sights for the U.S. military.  As the maker of the quintessential American breakfast and defender of the American homeland, the leap from torpedoes and gun sights in 1944 to atomic bomb rings in 1947 must-have made sense on the page.  

General Mills introduced the borderline confusing Trix brand cereal in 1954 as an alternative to their healthy corn puff cereal Kix.  Their distinguishing characteristics?                                       

Trix is for kids . . . not rabbits.

Once upon a time in America, Kix kids glowed in the dark.


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