If I created a card game that requires to the use of old famous slogans that company’s no longer use, will I have to ask permission and pay royalties to them?

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If I created a card game that requires to the use of old famous slogans that company’s no longer use, will I have to ask permission and pay royalties to them?

I would have to use well over 50 slogans. It is my understanding that trademark-slogans only last about 10 years unless renewed. Is it worth launching the card game as a business if I have to potentially get permission/pay royalties to each and every company? If I was to make the game a “creative commons” enterprise, would that help me?

Asked on January 10, 2014 under Business Law, California

Answers:

Brook Miscoski / Hurr Law Office PC

Answered 7 years ago | Contributor

This sounds like a joke I saw a few days ago on probably the Daily Show or the Colbert Report, where a family trivia game is exlusively about reinforcing brand recognition.

The comedy routine has a clear "parody" defense, because the marks are used for a joke and not directly to sell a product. On the other hand, a diaper was once named "Gucci Goo," which wasn't allowed because the point of the parody of Gucci was actually to sell a product. 

Moving on to the issue of renewal, you need to realize that renewal is about registration, not about whether the trademark actually exists. If a company fails to renew its trademark, but is still using its trademark, the company will probably still have common law trademark rights even though it will loose federal statutory rights based on registration.

A company that is maintaining a registered trademark that it does not use may be committing fraud (and may not have any rights), and a company that forgets to maintain its registration but still uses the trademark may still have rights. One needs to pay attention to whether the trademark is actually in use.

That's the long answer; the short answer is is that it would probably be pretty costly for you to even take the first step of determining which trademarks pose an issue for you. 

And then there's comedy central, which already invented that game...


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