It's not ok to "unfairly compete" with a character rightsholder or trademark rightsholder if your use would confuse consumers into thinking that your products were from the actual rightsholder of the character or the trademark. Is just Mario's top enough to evoke that character? Then it's a violation of someone else's rights. If it's not enough, then no one will want to buy your clothing based on similarity to Mario.
"Others are doing it" has never been a valid excuse for doing something wrong. While the way a trademark can become generic or weak is actually through the widespread misuse by others, if the trademark or character rightsholder is policing their rights, those "start up" companies you're noticing are never going to get off the ground, because it's just a matter of time before they get sued or threatened with suit and chased out of the market.
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Those other companies, thieves every one, are just waiting for the ax to fall. Even if they do not know it. You cannot use someone else's IP without permssion. The settlement demands from these companies are extreme. Defending a lawsuit would be very expensive. Invent something NEW, make / get NEW artwork. If you hire an artist, have an attorney draw up the release.
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Lot's of beginning business people make all kinds of errors, business-related and legal. Your instincts appear good (i.e. caution). The answer is "no", however. You probably cannot imagine the budget that major video game and "Hollywood" businesses spend on protecting their IP. What often is not stated, on Avvo or elsewhere, is that "winning in court" can often bankrupt you and your company. If what attracts you is the visual or name recognition developed by another company, that's the sign your probably should stay away completely and not try to win "on a technicality".
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A copyright exists when an original work of authorship is fixed in any tangible medium of expression, including pictorial, graphic, motion picture, and other audiovisual works. 17 USC 102(a). "A 'derivative work' is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a 'derivative work'." 17 USC 101.
Your proposal to make something derived from someone elses' works will get you into trouble.
Trademarks serve to identify the source of a good or service. Your proposal to use logos, specifically the batman logo, sounds alot like you want to use DC Comic's/Warner Communication's/Time Warner Entertainment's intellectual property without their permission. See PTO Reg. No. 1581659: http://tess2.uspto.gov/bin/showfield?f=doc&state=4005:jtro67.13.23.
You very much need to consult with counsel, and seriously rethink your business plan.
This post is for general informational purposes only. No attempt is made to provide legal advice.
This is not ok without a license from the owners of the trademarks and copyrights in the logos and characters. We get a variation of this same question on Avvo almost every day. The answer is always the same---whenever you try to profit by associating your business with famous celebrities, comic book characters, models, actors, sports franchises, athletes, etc., in all likelihood you are violating intellectual property laws, federal (copyright, trademark, patent), and state (including rights of publicity and privacy and unfair competition laws). The owners of the trademarks and copyrights derive substantial revenues from licensing their rights to companies who make merchandise, and if you pursue this project you will be perceived as cutting into their profits and interfering with their licensing programs. Thus, this business plan is a ticket to an expensive law suit unless you obtain licenses.
But I do not want to discourage you from your plan---you just need to lay the proper legal foundation. That means that you need to retain intellectual property counsel to attempt to procure the licenses that you need----trust me about this, you won't be able to get the licenses without using experienced counsel. One you have a budget for legal counsel, this business could be a great success.
deja vu. We just recently had this same question. The answer has not changed. What you propose is ILLEGAL. It's likely both copyright and trademark infringement, and you pick the most famous video game character of all time as your example. Nintendo would be after you in a Seattle second if you started selling MARIO tee-shirts. Stop before you start. This will surely get you sued.
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The answer to this, as a simple search of the thousands of other times this has been asked would show, is no. You need a license, or you'd be putting yourself at risk of a nasty lawsuit. Other people are doing it is not a solution -- you do not know if they are licensed, or just being incredibly risky, or whether they're being sued or not.
The author is a Maryland attorney; however no answer given on Avvo is intended as legal advice or intended to create an attorney-client relationship. Dan's expertise lies in the electronic entertainment (video game) industry, as well as complex internet law issues, electronic free speech, entertainment law, copyright and trademark law, and computer fraud. He primarily represents game developers and founders of emergent internet technologies.