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Trademark is a kind of intellectual property right. It is similar in some ways to copyright, and the two tend to fall into the same blanket category but there are some important distinctions between them. While copyright protects artistic expression, trademark is designed to ensure that consumers are able to easily identify the source of a good or service. In the United States, a federal law called the Lanham Act (15 U.S.C. ch. 22 ) largely governs trademark protection. It provides penalties for those who use trademarks in a deceptive or confusing way. At Wikia, I often get questions about trademark versus copyright, and so here is an overview of what constitutes a trademark as well as how it may impact your community.
What is a Trademark?
A trademark can be a slogan, word, logo or symbol or combination thereof. Anything that a seller uses to differentiate their product from others on the market can qualify for trademark protection. In some cases, even things like distinctive shapes or colors have qualified. The underlying idea of all trademark law is make sure that consumers can make informed choices by understanding where the products they buy come from, thus encouraging sellers to invest more in the quality of their wares, since they are accountable for them. The concept of a brand identity usually includes trademarked elements, but can also use other factors like overall visual identity, owner communications, and consumer perception.Marks usually carry a distinctive marking to flag them as protected under trademark law. The most common are the trademark symbol ™ and the circle-R ®. Marks with the ® are registered with the United States Patent and Trademark Office (USPTO). Registration isn't a requirement for trademark protection, but it does confer many beneficial rights so it is often the preferred method of larger rights holders. The ™ symbol is available to anyone who offers goods or services in commerce, even if they have not formally registered.
Please note that because is it also a piece of artistic expression, a logo may be eligible for both copyright and trademark protection.
In order to qualify for protection under the Lanham Act, a mark has to be distinctive. There are several variations on the level of distinctiveness, but they all essentially boil down to the idea that a mark cannot be generic. You could not use a broad general category as a valid trademark. For example, you could not register "Car" because it describes a class of goods and not a particular manufacturer like "Ford" (which is a registered mark).
Trademarks on Your Wiki
Because the central purpose of trademarks is to keep the consumer from becoming confused as to the source of goods or services, it's important that you don't use a mark in a way that implies you are either officially endorsed by the trademark owner, or actually the owner yourself. You should avoid doing things like claiming to be an official wiki for a product, or intentionally setting your wiki up to look like a part of the subject's own site or service.
Although it is narrower than it's copyright cousin, there is a doctrine of trademark fair use. In the classic application, it applies when you use a mark to describe the actual product or service. Trademark rights don't give their owner a blank check to silence legitimate reporting, commentary, criticism, or even parody. Basically, you can use marks to refer to the goods or services.
You can write movie reviews that mention trademarked titles, call out the publisher of your favorite game by their trademarked company name, or talk about trademarked comic book characters. The important thing to keep in mind is that you refer to these things, and not use them in a way that could confuse anyone that you are the source or that the source officially endorses or sponsors your wiki.
If a trademark owner feels that their mark is being misused on Wikia, they are welcome to contact us via Special:Contact and we will be happy to look into it. Unlike copyright law, there is no systematic process like the DMCA notice and takedown procedure in place for reporting instances of trademark infringement but we do understand the importance of protecting those rights and when we see marks being misused on Wikia, we take action.
I hope this overview provide a bit more insight into the world of of trademarks. If you have any questions (or request for future similar blog posts) please share them below!