Can Fictional Characters Obtain Trademark Protection?

Yes, fictional characters can obtain trademark protections. In the realm of Trademark law, trademarks are awarded to source indicators used in connection with the commercial exchange of goods and services. For example names, logos, slogans, phrases, sounds, colors, trade dresses and others. For a source indicator, such as a logo, to obtain trademark protection, it must be used in connection with the commercial exploitation of the mark owner’s goods or services. 

Trademarks provide assurances to consumers that they will not be unduly misled by merchants who wish to take advantage of a mark’s goodwill to sell products and services that are confusingly similar to that mark. As a result, if a source indicator has obtained trademark protection, no other mark may be used by a competitor, if said mark causes a likelihood of confusion on the consumers as to the origin of that mark’s goods or services. 

What Type of Protection is Better for a Fictional Character: Trademark or Copyright?

You want to have both. However, it’s worth noting that Trademark protections may be stronger than copyrights because they could provide the trademark owner with a perpetual monopoly on the use of the trademarked character, as long as it is employed in connection with the mark owner’s commercial use of its goods and services; as opposed to Copyrights which eventually expire.

What is Trademark Dilution of Fictional Characters?

Another source of protection for trademark holders, aside from an action in trademark infringement, is an action for trademark dilution, which concerns the weakening of the distinctive quality of a mark or trade name. Dilution is different from trademark infringement in that it does not require a showing of consumer confusion. Dilution law protects the distinctiveness of a famous owner’s trademark rather than the interest of avoiding consumer confusion. Dilution recognizes an injury when a famous trademark is portrayed in an unwholesome or unsavory context likely to evoke unflattering thoughts about the owner’s product.

Under the Federal Trademark Dilution Act, there are three (3) statutory exemptions for when dilutive uses of a trademark may be permitted: comparative advertising, news reporting and commentary, and noncommercial use. This statute applies only to commercial uses of a mark and explicitly states that the noncommercial use of a mark is not a cause of action for trademark dilution. 

What Rights are Awarded to Fictional Characters under Trademark Law?

As it pertains to Trademarks, federal, state and common law protection will protect the character from being used by another party without authorization when the character functions as a form of source identifier and commands public acceptance and recognition. This protection prevents the exact duplication of the character or the imitation of that character where the likely result is to cause public confusion, mistake or deception with regard to the source of the products. The critical issue in proving trademark infringement is the “likelihood of confusion”.

What Can I Do If Someone Is Using My Fictional Character Without My Permission?

Use of fictional characters is a tricky topic for courts as judges must balance trademark protections with constitutional free speech protections. An artistic work’s use of a trademark that would otherwise violate the trademark law is not actionable unless (1) the use of the mark has “no artistic relevance to the underlying work whatsoever,” or (2) it has some artistic relevance, but “explicitly misleads as to the source or the content of the work.” Either the trademark has to have no artistic relevance to the work, or it must be explicitly misleading.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*