Is a Trademark Infringement Claim Based on a Fictional Product Coming Soon to a Courtroom Near You?

Vol. 6 No. 5

By

Julia Anne Matheson is a partner at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP in Washington, DC. She specializes in trademark, unfair competition, and Internet-related issues including strategic international portfolio management, counseling and clearance, opposition and cancellation proceedings, and litigation and enforcement matters. Whitney D. Cooke is an associate at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. She specializes in trademark issues including strategic international portfolio management, counseling and clearance, and enforcement matters before federal district court and the Trademark Trial and Appeal Board.

Movie audiences and television viewers have long been accustomed to seeing famous trademarks pop up as the plot of a movie or television show unfolds. For example, Audrey Hepburn stood outside TIFFANY & CO. in the iconic 1961 film Breakfast at Tiffany’s, and an ASTON MARTIN or BMW is often featured in James Bond films. The prominent use of “real-life” trademarks in films and television shows—whether as a result of a product placement deal secured with the mark owner or, alternatively, as evidence of a product’s real-world popularity (e.g., STARBUCKS cups in various television shows)—is commonplace. The inclusion of such famous marks brings real-world elements into expressive works, and creates continuity between the real world and the fictional world portrayed on film. In such situations, there is no question that the movie or television program is referring to a product that has a real-life counterpart.

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