Q: Can someone trademark a public domain character and stop others from using the public domain version?
I produce a product which features Alice in Wonderland ( public domain images and my own creative). Another company has trademarked this character. I dont use any of their assets but can they stop me from describing my product as Alice in Wonderland ? I sell online and the listing title cleary states that it's sold under my own brand name and doesnt cause confusion to the source of the product. Is there a way to show that this trademark is unenforceable without a court order?
A:
You can generally use public domain characters like Alice in Wonderland without infringing on trademarks, especially if you’re using public domain images and your own creative elements. Trademarks usually protect specific branding elements, such as logos or particular stylizations, rather than the character itself. Since your product clearly states it’s under your own brand and doesn’t cause confusion with the trademarked version, you have a strong position.
However, the company that trademarked the character might have specific rights related to how they use the name or image in commerce. It’s important to ensure that your use doesn’t align with their trademarked aspects, such as certain design features or specific market categories they cover. Maintaining distinct branding and avoiding any elements they specifically protect can help mitigate potential issues.
Proving that a trademark is unenforceable without going to court is challenging. You might consider reaching out to the trademark holder to discuss your use and clarify any potential conflicts. Additionally, consulting with a legal professional can provide guidance on how to navigate the situation and protect your rights effectively without immediate legal action.
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