Could the Perilous Potter Plague my Prospects?
January 26, 2010 1:01 PM   Subscribe

Would having a comic with a similar name to a product that is tangentially related to the subject of the comic be legally problematic?

Working on a comic concept right now, and to avoid self-promo I'll phrase this as a hypothetical -- say my comic is called Perilous Potters, and deals with a group of globetrotting potters that use their amazing urn-casting abilities to fight crime.

I'm fairly well along in the development process, and it came to my attention that there's a company out there called Perilous Potter, which sells (say) hand-made bright red coffee mugs with skulls on them. It's a one-man show, or seems to be.

It's not inconceivable that my comic book may eventually have something to do with hand-cast coffee mugs, as it definitely falls into the realm of things potters might deal with. But I'm very fuzzy on how copyright works, and if this could give me any legal difficulty down the line.

So I've contacted the Perilous Potter, and basically said "hey, I'm working on this thing, and I just wanted to give you a heads-up." I was, naïvely, expecting a response along the lines of "Good luck with that! Why don't we swap Web links when the time comes to our mutual benefit?" I mean, it's happened before, when a zombie comic I was working out turned out to share a name with a parallel ultra-low-budget German horror movie, and the director and I wound up getting along famously.

Not so with the Perilous Potter. He's basically replied with a "don't do anything until I consult with my partners," which was kind of an eyebrow-raiser.

It's been a while since then, and I'm wondering if, well, I need to worry about the Perilous Potter. I could change the name, but after working on it for quite a while, there's nothing I like quite as much as the current name. There are other options, yeah, but nothing that rings as true.

I'm aware that copyright could make things tricky if I were making my own coffee mugs, or perhaps even bowls and plates, but I'm writing a comic book about a subject of which the making of red mugs is a subset of a subset, and I don't think there's any chance of legitimate confusion in the minds of a casual comic (or mug) shopper.

IANAL, so I thought I'd throw this out there, knowing that y'all aren't lawyers (and if you are you shouldn't be providing legal advice online, etc. etc.), but there are so many creatives in the MeFi community that I thought there might be some people with experience in similar situations.

I'm in Canada and the artist is in Chile, and this is going to be an online endeavour (possibly with POD output down the line) and the Perilous Potter is in the USA, if that makes a difference.
posted by Shepherd to Law & Government (6 answers total)
I think you're confusing trademark law with copyright.
Unless the 'Perilous Potter' has registered 'Perilous Potter' as a trademark then you should be OK, and even if he has I can't see that your comic is going to infringe his mark anyway (i.e people aren't going to get your 'Perilous Potter' comic confused with his business.

Usual caveats apply; I am not a lawyer, I'm not conversant with US or Canadian trademark law and you should go see a proper lawyer who is conversant with both.
posted by SyntacticSugar at 1:18 PM on January 26, 2010

I am very, very much not a lawyer, but I know of a situation that could be helpful or reassuring.

I work with a theater company that shares a name with a film company. The sharing of names was, like yours, completely accidental. The film company did claim that name first, but just barely.

A couple years ago, the film company wrote a cease-and-desist letter to us, ordering us to change our company name. We showed it to a lawyer friend, who assured us that we probably had nothing to worry about because the two companies were clearly different:

* he was an LLC and we are a non-profit organization.
* He's in Burbank and we're in New York.
* We specialize in the development of new plays, while he predominantly makes documentaries about marine mammals.
* he does film, we do theater.

In other words, despite the names, it is still reasonable to assume that our individual customers would be able to tell the difference between him and us. If someone approached us wanting a filmmaker, we wouldn't be able to help them, and they'd realize, "Oh, I have the wrong company" and go to the right one. Conversely, someone wanting to get their play produced would realize that "oh, this guy does documentaries, I have the wrong guy," and they'd find us.

Still, some people are a little twitchy about this kind of name similarity, and just want to run things by lawyers sometimes to be sure it's all okay (hell, WE did). His saying he wanted to check this may not have been because of any kind of "omigod you're STEALING MY NAME" flailing, it may have been more of an, "uh, I really don't know enough about this to know if it IS okay, let me talk to someone who does?"

Based on that one experience, I have a feeling he'd find that he wouldn't have much of a case, because there's even more of a difference between your venture (comic) and his (ceramics) than there is between mine (theater company) and the other guy's (film company)

My experience only, your mileage may vary.
posted by EmpressCallipygos at 1:21 PM on January 26, 2010

Not a lawyer, but you may still be in a sticky area. Scroll down here for the end of Dysfunctional Family Circus.
posted by Madamina at 1:54 PM on January 26, 2010

Madamina, that may be different -- that's a case of one cartoonist copying another cartoon. It's parody, sure, but the actual product is the same, and I think that's the sticking point -- someone who didn't know any better could get reasonably confused between the two comics and think Bil Keane HIMSELF had done DFC because "well, they're both cartoons!"

This is a case of a cartoonist sharing a name with a ceramics maker. If Shepherd was ALSO making red coffee mugs, that'd be different -- but people who go looking for Perilous Potters because they want a mug for grandma can tell that if they've found a cartoon that 'well, this is CLEARLY the wrong thing'.
posted by EmpressCallipygos at 2:01 PM on January 26, 2010

Consider this in contradiction to some of the above. Technically you can't restrict usage of titles. That's why to my incredulous chagrin, there's a recently published book called The Forever War about Iraq, ripping off word-for-word the title of The Forever War SF novel by Joe Haldeman.
posted by carlh at 6:26 PM on January 26, 2010

See also the tv show "Crash" (2008) based on the film Crash (2004) compared to Crash (1996) which is based on the novel Crash (1973) not the young adult novel Crash (1996) and not to be confused with the magazine Crash. Of course these all differ from the Welsh series Crash (2009), and the made for tv Crash (1978). None of these relate to the UK Band Crash who differ from the South Korean Crash and obviously Finnish The Crash differ as well. Crash is also the title of more than 9 songs, 4 albums, a card game, and at least the first name of two videogame characters.

Partly the Crash situation may be that it's such a common word that you can't take control of it, but I think it's partly that title similarity would have to establish that you are co-opting their trademark or copyright for gain, and that your thing is not named similarly simply because it covers similar ground. I know it's a fake title but something called "Perilous Potter" might be more at risk of being sued for trying to associated with Harry Potter, rather than someone doing actual pottery.
posted by haveanicesummer at 7:58 AM on January 27, 2010

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