{"id":416,"date":"2011-02-23T16:14:16","date_gmt":"2011-02-24T00:14:16","guid":{"rendered":"http:\/\/ipmetrics.net\/blog\/?p=416"},"modified":"2016-03-21T14:42:19","modified_gmt":"2016-03-21T22:42:19","slug":"fictional-beer-and-the-future-of-trademark-law","status":"publish","type":"post","link":"http:\/\/www.ipmetrics.net\/blog\/ip\/copyrights\/fictional-beer-and-the-future-of-trademark-law\/","title":{"rendered":"Fictional beer and the future of Trademark Law"},"content":{"rendered":"

\"Duff-Cerveza-270x300\"<\/a>In the fictional world of The Simpsons<\/em><\/a>, Duff Beer is a popular brew. What if you developed a real-life beer with the same name and had instant brand awareness? That is what Mexican entrepreneur Rodrigo Contreras thought when considering how to invest the proceeds the book he published, The Achievements of President Fox<\/em><\/a>, a 136 page collection of blank pages.<\/p>\n

Contreras’ real-world Duff Beer<\/a> has been selling in Mexico and Europe (but not widely in the USA), and The Financial Times<\/a> has even written a profile piece on the venture, where Contreras insists he contacted Fox and the producers of The Simpsons<\/em> in 2006 but got no response. Tellingly, the FT piece quotes a happy bartender explaining why sales have needed little in advertising: “The moment you offer customers Duff Beer from\u00a0The Simpsons<\/em>, they rip it out of your hands.” This is an example recently highlighted in a very thorough note by Benjamin M. Arrow<\/a>, published in the latest issue of the Fordham Intellectual Property, Media & Entertainment Law Journal, w<\/em>hich has gotten deserved attention from the intellectual property community.
\n<\/span><\/p>\n

The situation above clearly suggests a trademark infringement, but it is not a straight forward application of the Lanham Act. The Duff identifier is not really used in commerce as a beer trademark, except within the fictional world. Copyright law, on the other hand, does not protect de minimis<\/em> expressions like these. Nevertheless, it seems obvious that Contreras’ Cerveza Duff is trading on the goodwill of the fictional brand. <\/span><\/p>\n

Twentieth Century Fox indeed has the only registration of the trademark “Duff Beer” in the US<\/a>; it is a mark for Class 25, covering merchandising apparel such as shirts, t-shirts, tops, swimwear, shorts, pants, caps, or hats. They are missing coverage for the actual beer category though, that is a not-so-tiny technicality in defending a brand. <\/span><\/p>\n

From the perspective of potential trademark infringement damages in a fictional trademark case, there may be a few potential theories to pursue, but the most promising ones would be related to unfair competition and the attribution of a portion of an alleged infringer’s profits to the advertising and goodwill generated by the show’s producers and distributors legitimately accruing to the fictional mark.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

In the fictional world of The Simpsons, Duff Beer is a popular brew. What if you developed a real-life beer with the same name and had instant brand awareness? That is what Mexican entrepreneur Rodrigo Contreras thought when considering how to invest the proceeds the book he published, The Achievements of President Fox, a 136 page collection of blank pages. Contreras’ real-world Duff Beer has been selling in Mexico and Europe (but not widely in the USA), and The Financial Times has even written a profile piece on the venture.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[4,9,11,12,16,21],"tags":[],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p2xROl-6I","_links":{"self":[{"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/posts\/416"}],"collection":[{"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/comments?post=416"}],"version-history":[{"count":1,"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/posts\/416\/revisions"}],"predecessor-version":[{"id":955,"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/posts\/416\/revisions\/955"}],"wp:attachment":[{"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/media?parent=416"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/categories?post=416"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/www.ipmetrics.net\/blog\/wp-json\/wp\/v2\/tags?post=416"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}