A Global and Local Outlook
Edited by Irene Calboli and Jacques de Werra
Chapter 3: LICENSING COMMERCIAL VALUE: FROM COPYRIGHT TO TRADEMARKS AND BACK
Every U.S. intellectual property practitioner knows that copyright and trademarks often overlap, particularly in visual characters. The same figure may qualify as a pictorial, graphic or sculptural work on the one hand, and as a registered (or at least used) trademark on the other. The two rights, though resting on distinct foundations, tend to be licensed together. Trademarks symbolize the goodwill of the producer, and are protected insofar as copying that symbol is likely to confuse consumers as to the source or approval of the goods or services in connection with which the mark is used. For famous marks, the dilution action grants a right against uses of the mark that are likely to ‘blur’ or ‘tarnish’ the distinctiveness of the mark, even in the absence of confusion. In either event, the object of protection is the producer’s goodwill (in theory, as a proxy for consumer source identification), not (again, in theory) the mark per se. Copyright, by contrast, is a right ‘in gross’ allowing its owner to prohibit the copying of the work without regard to source confusion. Copyright protects the work of authorship itself, not the identification of that work with a single, if anonymous, source of origin. Pursuant to the Constitutional grant to Congress of power to secure authors’ exclusive rights ‘for limited times’, copyright lasts for a term of years; trademarks are protected for so long as they continue to represent a single producer’s goodwill. Subject to that prerequisite, registered trademarks may be renewed indefinitely.
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