Hey, I got A question about Trademarks and/or Copyrights.
I am starting a T-shirt Brand.
And want to know if A slogan or text with the first or Last Name of a historical figure can be Printed on a T-shirt.
To Give You A Few Examples:
“Einstein Was a Picses”
“ Beyonce is a Virgo”
"In my Head I Sing Like Sinatra”
You get the idea, After research I saw you can not copywriter A First or last name.
What about trademarks?
When you apply for a trademark and a name is present, the application requires you to identify the name as a natural person. If living, the USPTO will ask you if you have permission to use the name.
If you use someone's name or likeness for a commercial purpose you may be liable for violating their right of publicity.
You should discuss with an intellectual property attorney in a private consultation.
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What you are describing is not really trademark use because these sayings you plan to place on shirts are not being used to identify your products in commerce. We refer to this as ornamental use. The big issue as I see it is neither trademark or copyright but rather publicity and privacy rights, which are state governed laws that vary. These kick in when you use the name, image or likeness of someone (especially a famous person) to help sell or promote a good or service. Many states even extend such rights to deceased persons ranging from 10-100 years after they pass.
This does not mean that I conclude that you would be violating anyone's rights however as you might have some good arguments that your use of their name is for social or political commentary, but you run a big risk here for sure. That is, even if you might have good defenses it will cost you a lot of money to defend yourself should someone like Beyoncé take action.
Before you jump in here, I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Lapin, LLC on the basis of this posting.
No, you need permission (and a license).
Consult a lawyer for more detail.
The foregoing is for informational purposes and does not constitute legal advice in a particular matter or the existence of an attorney-client relationship. All answers ©2017 Greg Victoroff, Inc. No further reproduction or use for any purpose.
This is a more complicated issue than you may realize. There are two main legal problems:
First, celebrities and their decedents (depending on the State where they died) have rights of publicity. If you use the image or name of a famous celebrity (Frank Sinatra) to market and sell your T-shirts without permission, you could be violating their rights of publicity, There are complicated issues regarding "fair use" and the First Amendment that sometime allow you to avoid right of publicity issues, but each specific phrase or T-shirt would have to be evaluated on its own. Unfortunately, the law in this area is quite unsettled. For example, in the 9th Circuit Court of Appeals, there have been a serious of inconsistent and somewhat contradictory rulings about how the right of publicity attaches to wearing images on T-shirts and/or use the name of celebrities on T-shirts. This is an unsettled area of the law but as a practical matter, it is dangerous to sell T-shirts that use celebrity names and images without permission from the celebrity.
Secondly. it is quite possible that some of the phrases you would use could be protected as trademarks owned by third parties., You would need your IP counsel to conduct a trademark clearance analysis for each phrase. For example, it is quite possible that there is a company with the trademark "Einstein Was a Pisces" that uses this trademark to identify the source or band name for a line of clothing or other products. You have legal duty before you begin selling T-shirts to make sure that the phrases you use do not violate third party trademarks---which means that you need to retain IP counsel to conduct a trademark search for each phrase that you want to use. This can become expensive. In addition to searching in the US, you need your lawyer to search for trademarks in every country in which you may operate---you will probably need searches at least in the U.S. and Canada (but probably Mexico and Europe as well). Trademark rights remain national---so each country where you may have customers need to be checked. In the internet age, you will probably be selling your T-shirts in many countries.
If you are going into a business that involves phrases like this, you absolutely must retain legal counsel to advise you. The risks are too great to proceed without legal counsel. That means you need a substantial sum to pay for competent legal counsel. The success or failure of your business will be dependent on how you navigate through these legal issues---I tell my clients all the time in the fashion world that compliance with legal obligations is at least as important as the creativity and attractiveness of their designs. You can have the best ideas in the world for your T-shirts, but if you violate third party IP rights, your business will fail. Thus, it is critical from the start to work with IP counsel (which means you need a budget for this---this is not a $2,000 problem, it is a $25,000 or more cost---starting a business without investing substantial amounts in laying the proper legal framework is simply no longer realistic in today's economy).
I am not your lawyer and this is not intended to be legal advice on which you rely. My answer is merely intended to assist you in understanding some of the issues that you face so that you can make an intelligent choice when you hire legal counsel.
I don't believe that the phrases you've described would function as trademarks. In addition, you'd be opening yourself up to liability to the named individuals or their estates for violation of the right of publicity. Before moving forward you definitely need to speak with legal counsel.
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