Discussion:
What is the name of your state?What is the name of your state?What is the name of your state? Florida
I have a website that features single panel cartoons that I have drawn. I recently received a letter from an artist who also owns a website that features single panel cartoons. This artist claims that the frame design of my cartoon "is nearly identical" to the design he uses (which is trademarked) and demands I cease using it.
Here is a sample of what he's trademarked:
The trademark registration number is 2,065,162
And a sample of this design in use:
Here is a sample of my design:
I can easily point out numerous features about our designs that I feel make them clearly different, but I would really appreciate getting some advice from someone who is well versed in trademark law - which I am not.
I would greatly appreciate some advice with this.
Thanks a lot,
Mary
p.s. If it makes any difference, the complaint originates out of California.
Answer:
Not even close. This idiot is pissing in the wind.
Answer:
LOL.... That pretty much sums up my opinion as well.
I just truly do not know how the law sees it. While I personally feel as though there is no basis, does the law see it that way too? I just wasn't sure if your opinion is also based with a background of knowing trademark law or just your own personal opinion?
If anyone can give me some legal points where trademark is concerned to support the theory that he has no valid claim here, that would be great. For instance, how exact does the trademark hold to the drawing submitted? I mean, his drawing has the content area tilted, the black backdrop straight (and an overall larger area than the content area). It indicates an even border all the way around, and even includes the verbage for his cartoon. Does this, then literally translate to the exact specifications that are trademarked or has he now trademarked the fact that his cartoon frame includes a black backdrop and is tilted - regardless of in what manner?
If you look at my cartoon, the content area is straight (his is crooked), the black backdrop is tilted (his is straight). The backdrop is of the same size as the content area (his is larger). My border is clearly larger at the top (his is even all around). My verbage is within the top frame (his is outside). To me, these are significant differences.
BelizeBreeze, thanks so much for responding... and putting into the words what I am actually thinking
I guess I just want some legal validation that I am not taking any unecessary chances by standing my ground. It would be easy enough to change, but I get tired of being bullied around, and frankly, I like my design. I just don't want my stubborness to cost me a chunk of change.
Thanks again!
Mary
Answer:
The bulk of trademark law is based on "likelihood of confusion" -- if a consumer of a product would be likely to be "confused" then infringement exists. This confusion could be related to the "origin" of the goods -- this is usually a "passing off" situation, where one person tries to "pass off" their goods as if they were made by another, more reputable, company. -- or related to a relationship with the manufacturer, which is usually the case when you have someone selling goods that is trying to pass themselves off as an authorized retailer, or is using the other guy's mark to drive customers to their place of business.
So, what does this have to do with you? Well, for one thing, it should illustrate that there are no "bright-line" rules, that say, for example, "this is okay, but this isn't." It's all a balancing test, where a court will balance ALL fo the factors and come up with a conclusion. In other words, without reviewing ALL of the facts, it's tough to say one way or the other.
From a quick look at both sites:
Facts on your side would appear to be a different type and location for the titles, and the fact that your name prominantly appears at the top.
Facts against you would appear to include the fact that, at first glance, the overall design is nearly identical to what is covered in his trademark. I know you give all of these minor differences between his frame and yours, but they really don't seem that significant -- the overall design LOOKS almost the same until you carefully look at it.
I would strongly disagree with BB on this one -- the "likelihood of confusion" is tested at the moment the consumer sees your work -- and I could easily see how someone could be initially "confused" as to whether they were seeing your work or the other guy's work (the TM holder). Of course, once they look closely, they'll see the differences and your name, but at that point, it's too late -- confusion has occured.
Of course, if you are being threatened with legal action, you should take all of your materials down to a local attorney with experience in trademarks and get an opinion as to infringement as well as an opinion ofn how to redraft your desing (if necessary) to avoid infringement in the future.
Answer:
This is an unenforceable trademark and despite DIV's reservations, will be found so in litigation.
There are presently (at last count) more than 2,400 cartoon publishers either presently using a variation of the single panel presentation or have used it in the past since November 19, 1893 when The New York World, published a supplement which included "The Yellow Kid", a cartoon drawn for the World by R.F. Outcault, depicting a snaggle-tooth youngster in a single shirt-like garment.
I doubt such a trademark can be upheld since its origins do not reside with the trademark holder.
Answer:
Well shucks divgradcurl... your post is exactly what I was looking for, just not necessarily what I wanted to hear. Although I don't like it, I understand the premise of what you are saying. Guess I'll have to ditch the drop shadow. Certainly once that is gone, I don't see there being any issues with any confusion.
Thanks so much for taking the time to explain it so clearly. I very much appreciate it. Give me a shout if you ever want a cartoon done - it's the least I can do.
Take care,
Mary
Answer:
This is an unenforceable trademark and despite DIV's reservations, will be found so in litigation.
There are presently (at last count) more than 2,400 cartoon publishers either presently using a variation of the single panel presentation or have used it in the past since November 19, 1893 when The New York World, published a supplement which included "The Yellow Kid", a cartoon drawn for the World by R.F. Outcault, depicting a snaggle-tooth youngster in a single shirt-like garment.
I doubt such a trademark can be upheld since its origins do not reside with the trademark holder.
Hmm...we must have been writing at the same time, as I did not see your post prior to my last one.
Do you happen to have any further specific references to support this? I'd be interested to see if it may be worth reconsidering changing my design. I tried to find any examples of single panel cartoons utilizing a drop shadow that may have been trademarked prior to Jason Love's design, just not quite sure how to go about it.
Answer:
This is an unenforceable trademark and despite DIV's reservations, will be found so in litigation.
There are presently (at last count) more than 2,400 cartoon publishers either presently using a variation of the single panel presentation or have used it in the past since November 19, 1893 when The New York World, published a supplement which included "The Yellow Kid", a cartoon drawn for the World by R.F. Outcault, depicting a snaggle-tooth youngster in a single shirt-like garment. BB, again I disagree -- the trademark isn't for a "single panel cartoon," but is instead for a particular style of the frame of the single panel cartoon -- and there does not appear to be any reason why THAT shouldn't be enforceable. Of course, there are many, many single-frame cartoons -- but that doesn't mean a particular stylistic element of a single frame cartoon can't be an enforceable trademark.
Further, the design was registered in 1997. Since it is more than five years old, it has most likely become incontestable -- which means it CAN'T be found unenforceable, unless it can somehow be shown that the mark was not entitled to registration in the first place -- and although that has been done a couple of times, it's a pretty steep, uphill battle.
I doubt such a trademark can be upheld since its origins do not reside with the trademark holder. Again, the trademark is on the design of the frame, not on single-frame comics in general. Further, while "its origins do not reside with the trademark holder" would be a relevant question if this were a copyright problem, origin of the mark is irrelevant from a trademark perspective. If Nike were to let their "swoosh" emblem become abandoned, then potentially you or I or anyone else could then register and start to use the swoosh emblem as our own -- even though it clearly did not originate with us.
Answer:
Every single panel cartoon I have researched in the last few hours, has exactly the same panel design as the first example (the one claiming infringement) and the majority of those were produced before 1960.
The ONLY element I see where there could be a supportable claim would be in the angle of the interior frame. Otherwise, the frame itself, along with the titlebar, has been in use in that or similiar fashion for more than 100 years.

Answer:
tried to find any examples of single panel cartoons utilizing a drop shadow that may have been trademarked prior to Jason Love's design, just not quite sure how to go about it. See my post above -- although prior use of a "drop shadow" would be a relevant question in a patent case and potentially a relevant question in a copyright case, it is largely irrelevant in trademark cases. First use of a design is not as important as first use of a design in interstate commerce. Further, a registered trademark can even sometimes limit the use of the same "mark" by someone who used it prior to the registration being granted. Trademark law can be a very different animal from patent and copyright law.
Answer:
Every single panel cartoon I have researched in the last few hours, has exactly the same panel design as the first example (the one claiming infringement) and the majority of those were produced before 1960.
The ONLY element I see where there could be a supportable claim would be in the angle of the interior frame. Otherwise, the frame itself, along with the titlebar, has been in use in that or similiar fashion for more than 100 years. And, again, it DOESN'T MATTER as long as the person has a registered trademark, especially if the trademark has become incontestable. Preexisting use does NOT make a trademark unenforceable -- it might make the mark unenforceable against preexisting users, but it will NOT be unenforceable against later users.
Answer:
This has proven rather interesting with good debates on both sides. I guess there is enough of a reasonable amount of question with this that I'm not too willing to take my chances.
divgradcurl, in your opinion, do you feel as though simply removing the drop shadow is enough to satisfy any possible "likelihood of confusion"? I wouldn't imagine there should be much of an issue once this portion is removed, but again...another sound opinion is always welcome.
You all are fantastic for giving this so much consideration. The discussion about it is interesting regardless of the outcome.
Take care,
Mary
Answer:
divgradcurl, in your opinion, do you feel as though simply removing the drop shadow is enough to satisfy any possible "likelihood of confusion"? I wouldn't imagine there should be much of an issue once this portion is removed, but again...another sound opinion is always welcome. It would be hard to see how a plain border without a drop shadow would infringe on the registered mark.