Thursday, May 20, 2021

Copyright or Trademark? Hint: It's a TRIX Question

Like Madame Curie and Mariah Carey, copyrights and trademarks are often mistaken for each each other -- the irony being, the main function of a trademark is to prevent consumer confusion.

Trademarks protect brand recognition and reputation. They do so by preventing others from copying source identifies such as words, slogans, series titles and designs that allow consumers to identify an distinguish the source of one product or business from another. Trademarks are earned over time.  Copyrights on the other hand, spring into life upon creation.  Copyright law protects the way ideas are expressed - not the ideas themselves. Under copyright law, where the focus is on authorship, not branding, short phrases, literary titles and names receive no protection. 

While copyrights and trademarks protect different property interests, the protections they offer often overlap.  Take Trix cereal for example. The Trix name, Trix Rabbit, and the marketing slogan, Silly Rabbit, Trix is for Kids are protected  under trademark law. The way the Trix cereal box (not to be confused with Kix cereal, also by General Mills) 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.   Also appearing on the graphically rich Trix cereal box is the General Mills logo, which makes it easier for consumers to distinguish General Mills' Trix brand cereal from Corn Fakes by Degenerate Mills.   

Trix Rabbit's fruitless attempts to use disguise (balloon seller, bugs bunny) and deception to flimflam children into giving the hare a bowl of cereal are minor swindles.  Cartoon con games punishable by fine in the court of cartoon justice.  However, if you use deception to steal confused cereal customers from a competitor, that constitutes trademark infringement and unfair competition, actionable under both state and federal unfair competition laws.    

Coexistent with trademark protection, General Mills has in its arsenal copyright law with which to protect their cartoonish cereal mascot against unauthorized copying.  Animated cartoons, comic books, board books for kids and collectibles all require permission in the form of a merchandise license agreement signed on behalf of General Mills.  Finally, patent law, another form of intellectual property, protects 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. 

Cereal is the quintessential American breakfast. The next time you hear or sing “America the Beautiful” (“For amber waves of grain…”), stop and think about our unalienable right to life (not the cereal), liberty and intellectual property. Keep in mind that if  you falsely advertise you are selling the "real McCoy" that sort of scam has consequences under trademark and unfair competition law. 

How to Distinguish Kix from Trix Brand Cereals (Satire)

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 way to light up their day with a Kix (not Trix) atomic "bomb" ring promotion. For a box-top plus 15 cents, kids could send away for a Kix Atomic Bomb Ring Atop the ring was a nuclear warhead that held a secret compartment.   

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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