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Old October 23rd, 2007, 03:27 PM   #1
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Films, Studios, Pictures, Productions, etc....what are the rules?

I have a name in mind that I want to use but have searched around online and have seen similar names. What is the rule/legality to that?
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Old October 23rd, 2007, 04:35 PM   #2
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Basically, you can't copyright a TITLE.

The catch to that is, some titles have become "Trademarks" over the years. "Star Wars" and "Star Trek" to name two. So while you might not be guilty of copyright infringement, you would be guilty of trademark infringement.
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Old October 23rd, 2007, 05:22 PM   #3
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I have a name in mind that I want to use but have searched around online and have seen similar names. What is the rule/legality to that?
The rule is that you can't use someone else's trademark (which includes service marks and trade names) such that (1) there is a likelihood of consumer confusion as to source, sponsorship or affiliation, and (2) that a famous mark is tarnished or diluted, even if there is no likelihood of consumer confusion.

"Similarity" is evaluated by a three-prong test that examines the appearance, sound and meaning of the two marks.

"Likelihood of consumer confusion" involves a multi-pronged test that should only be evaluated by a lawyer. Do a google search on "Polaroid factors" if you want to see an implementation of the test.
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Old October 23rd, 2007, 05:49 PM   #4
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Hmmm...sorry maybe because its been a long day but I'm a bit confused.

Lets say I wanted to name my company DVDude Productions, but someone had the name DVDude Studios.....would that be infringing upon that company's name?
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Old October 23rd, 2007, 05:55 PM   #5
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if you plan to incorporate, you would need to search for a name not yet used in the united states. if you plan to make a limited liability company, you need to also make a search.( I think an L.L.C. is statewide) its done automatically when you apply. if you plan to use a DBA. or "doing business as" then only a county search is required. if the name is strictly a web name, then as long as the website is available, its usually ok to use it. you need to decide what level your ultimate goal is for your company before you commit to a name.
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Old October 23rd, 2007, 06:30 PM   #6
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I'd like to just host a website to put my films on. Not really wanting to take this name to any major heights as I am already involved with another production company that is already established and well known in our area. If there are major things that need to be done with one of my films they would help me with that, like I said just somewhere to host my videos and a blog.
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Old October 23rd, 2007, 07:34 PM   #7
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Hmmm...sorry maybe because its been a long day but I'm a bit confused.

Lets say I wanted to name my company DVDude Productions, but someone had the name DVDude Studios.....would that be infringing upon that company's name?
There's no easy answer to that. For the specific example you gave, probably, assuming that both are in the business of producing film or video. Infringement is a very fact-specific analysis that takes into account exactly how the mark in question is being used. Without knowing exactly what mark you want to use, who else is using it, and how you and they use it in commerce, it's impossible to say.
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Old October 23rd, 2007, 07:38 PM   #8
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Originally Posted by Allen Plowman View Post
if you plan to incorporate, you would need to search for a name not yet used in the united states.
Not true at all. Corporate names do not need to be unique.

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if you plan to make a limited liability company, you need to also make a search.( I think an L.L.C. is statewide) its done automatically when you apply.
Same.

Quote:
if you plan to use a DBA. or "doing business as" then only a county search is required.
Perhaps within the county. None of this, however, has anything to do with trademark. The fact that you can obtain a corporate registration does not mean that you can use your corporate name as a trademark without infringing someone else's trademark rights. The same is true regardless of business entity, i.e. LLCs, PLCs, PCs and DBAs are not immune from trademark liability solely because they obtained the appropriate business license and/or registration.

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if the name is strictly a web name, then as long as the website is available, its usually ok to use it.
Absolutely and completely incorrect. The availability of a domain registration has absolutely nothing to do with whether that domain name can be used as a trademark without infringing someone else's trademark rights.

Quote:
you need to decide what level your ultimate goal is for your company before you commit to a name.
The OP needs to consult a lawyer who will review the proposed name, search the USPTO database, obtain a common law search, and then make recommendations based upon the result.
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Old October 23rd, 2007, 07:42 PM   #9
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I'd like to just host a website to put my films on. Not really wanting to take this name to any major heights as I am already involved with another production company that is already established and well known in our area. If there are major things that need to be done with one of my films they would help me with that, like I said just somewhere to host my videos and a blog.
Go to the USPTO website at uspto.gov and see if someone else has registered the name or something similar (the "something similar" is the Catch-22, because similarity is a legal question and not one that can be readily determined by a layperson). Then do a google and yahoo search and see what turns up -- this will give some indication of common law uses. Better, though, would be to pay a company like Thomson & Thomson to do a common law search, as doing the latter is prima facie evidence of non-intentionality if you're sued for infringement.

If you're doing this as a business, you really should invest the relatively small amount of money to consult an attorney. Taking advice from lay people is a guaranteed way of getting the wrong information, as illustrated by this thread.
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Old October 23rd, 2007, 07:45 PM   #10
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I'm not planning to use the website for the business end, I'd be going through Eno River Media Productions for that. Right now I'd just like somewhere to host my short films and blog.
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Old October 23rd, 2007, 11:38 PM   #11
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Travis - here's a "practical" way to think about it (not stepping on the legal response you got, which is quite helpful in reversing the inacurate info given...)

Let's say you use the name "TVGuyde"... you'd probably get a letter in the mail about 10 days later... especially if you were anything related to the entertainment biz... BIG trademark owners protect vigorously.

Now instead, you use "travis J, video guide". Unless there's another more famous "travis J" (and I think there is a term now for this... "Googleganger" for someone who has the same name and isn't you, and may be more or less famous or infamous...), you've got a bit more unique "identity", and as long as you're not in the same industry or confusing the potential "viewer" as to your professional association, you've at least got some defense (presuming you researched and can show there were no infringements when you got your site going)...

Here's the practical part - if you use something too similar or that might cause confusion with someone else's trademark/trade dress/copyrights, you may find yourself in trouble, perhaps fast. ESPECIALLY fast if your intent was to gain credibility by "association", and the IP owner doesn't like the "company".

Find your own UNIQUE identity, and then be prepared to protect it if you hit it big! Why skirt close to someone else's identity? It's just better to be unique!

(and of course do some research to make SURE you really are as unique as you thought you were!!)
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Old October 24th, 2007, 09:47 AM   #12
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I'm not planning to use the website for the business end, I'd be going through Eno River Media Productions for that. Right now I'd just like somewhere to host my short films and blog.
If, in fact, it's truly not a commercial use (and commercial uses don't necessarily involve solicitation or the exchange of money -- advertising can be a commercial use), then trademark infringement wouldn't be a concern at all (though you still may receive a cease-and-desist letter).
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Old October 24th, 2007, 01:57 PM   #13
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Paul, I was not refering to trademarks at all in my post, the question was about company names. you must do a name search prior to applying for a dba, an L.L.C., or a a corporation. you can not set up the same name as one already used
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Old October 25th, 2007, 08:05 PM   #14
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At Least In Idaho.....

I know that in the state of Idaho you do not need to worry about any sort of legal issues if you use your first and last name in the title of your business. I know you are only concerned about a web site, but just think of them as the same thing to make life a little less complex.

So register a domain name that is [first]last]video.com or something along those lines and you are almost guaranteed to be legal and that the domain will be available.

This has nothing to do with the memorability of that URL or the chance that people will find it, but that is a different matter.

Last edited by Jason Robinson; October 26th, 2007 at 12:13 PM.
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