Video Game, Music

Posted by . updated on 11/11/2009
I am in the process of naming my album of original music.  I have debates with my sister (a publisher) and my sister-in-law (an attorney, but not of copyrights) about whether or not I can use titles from other media.

I have searched through this fantastic forum for "likelihood of confusion", which seems to be the sticking point in all of this.  So, let's say I have an album of music and I want to name it after the title of a video game, like "Donkey Kong" or "Wonder Boy" (which are both trademarked), or a book like "The Little Prince" or "The Joy of Cooking".  Is the likelihood of confusion too close to call on this one?  Or am I safe because they are dissimilar kinds of media (music and literature/video games)?

I remember once looking for DVDs of the old television show called "Northern Exposure", and a musician had named his album the same, possibly having never seen the show.

So...

1) Can you use the same name for your product/creation as one coming from a different medium (a book called "Super Mario Bros.", for instance)?

2) Can you use the same name for your product/creation as one from the SAME medium (an independent nature film called "The Mighty Ducks" or "Bambi", for instance)?

Sorry for the long question, but I find this all fascinating. 
Answers (5)
video  game  music 
 
Spielman
Jonmustang,
Your review of this forum is correct that it all comes down to likelihood of confusion. First the fact that you are ware of the potnetial, other media (game), may create a problem for you in the future. Second, your example regarding northern exposure should reveal the difference between Super Marios Bros. What i mean is one could make an argument that Northern Exposure has some clear, different, and geographic descriptive meaning, whereas it would be much more difficult to say the same thing about SMB. There are certainly arguments to be made that the medium are different and the likelihood of confusion would be low, but that is a business risk you must make a decision on. Without more facts the hypo is not clear. Since we are just talking in generalities it is too difficult to guess whether or not your potential album will cause a problem. Good luck.

Darren Spielman
www.ComplexIP.com
 
 
JSonnabend
I think Darren's analysis may be missing the bigger issue, namely, the nature of your use.  If I understand the facts correctly, you are considering naming a music album.  If so, that use by itself would not constitute a trademark use, and so the LOC question may be irrelevant. 

- Jeff
 
 
Jonmustang
Thanks Spielman and JSonnabend; very interesting.  I wasn't too specific in the first post because I often wonder about how titles are treated under trademark law in general.  For instance, there is a rather popular band called, "Belle and Sebastian" which unquestionably took their name from an older French children's book/TV program called "Belle et Sebastien".  It seems poets, writers and artists are often naming themselves or their work after the titles of things that influence them.  The legal side of doing so is something I'd like to know a lot more about!

Spielman: The specific (non hypothetical) idea is an album named "Wonder Boy in Monster Land", which was a 1987 video game made by the Sega Corporation.  I enjoy the idea of using the title metaphorically, you see.

JSonnabend:  When I look at the cover of the aforementioned video game, the title is followed by a "TM" symbol.  Am I to understand that this is a trademark for the font of the title and not the words of the title itself?  Are titles not subject to trademark law?

 
 
JSonnabend
You are not correct.  The "TM" indicates that the other party is claiming a trademark in the words and/or the stylized depiction of the words.

- Jeff
 
 
10YearReg
And don't forget to consider, even if you are legally correct, that if you get the call from the owners of the "Donkey Kong" IP, you're looking at 100k just to begin to defend the infringement suit.

Why not come up with a unique title?
 

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