Non-legal legal advice: “If you have to ask, you probably shouldn’t”

Most of these questions have one thing in common.I answer a lot of questions on legal advice site Avvo.com regarding intellectual property and entertainment law. Most of these questions have one thing in common, however. Here are a few examples; see if you can spot the pattern.

I’m developing a game with a similar theme to the Disney movie Frozen. I used stocked photos that I paid for online that look similar to the characters. I also plan to use the word “frozen” in the title, but not by itself and along with other words. Could this be a copyright infringement?

let’s say there’s an existing course for sale from a competitor called “bowling mastery”. Are either of these different enough to be okay? “bowling fast mastery” or “bowling winning mastery” or “speed bowling mastery”? At what point does it become not confusingly similar, in that example? many thanks

If I were to knit a superhero logo dishcloth (ex: the lightening bolt for Flash, or the Green Lantern symbol), from a pattern that was NOT from the company (create pattern myself so they aren’t really the same/look like the actual logos, but still similar), and if I throw my own clay version of Star Trek cups, all to sell and exhibit, is it still copyright or trademark infringement? Again, the patterns and making the cups are all from scratch.

If you have to ask, you probably shouldn’t be doing it.

The “gut feeling” is a powerful thing.The “gut feeling” is a powerful thing. The fact that a person had to ask these questions means that they probably had some feeling that what they were planning wasn’t the right thing to do. That feeling is usually a good barometer of right and wrong, at least for the non-sociopathic among us. If something seems like it could be wrong enough that you need to ask an attorney if you should be doing it, you most likely shouldn’t be doing it.

Why would you want to do it in the first place?

If you need to seriously ask if what you’re doing is legal, maybe it’s time to go back to the drawing board.Well, there are two answers to this one, I suppose. In my opinion, your business is better served by distinguishing yourself with a great idea. Having a product that is easily confused with another isn’t really a sound business strategy. Unless, of course, you are trying to leech off of the goodwill of that other business or IP. Then your bad faith attempt to make money will probably result in you getting sued. I can’t say that it’s not deserved, since it makes everyone who is doing legitimate work in that industry look bad.

So, I’ll say it again. Before you move forward with a business idea or product, listen to your gut. If you need to seriously ask if what you’re doing is legal, maybe it’s time to go back to the drawing board. I do admit that there are plenty of legit legal questions, and for those I suggest contacting an attorney for a free consultation. However, in 90 percent of situations, the gut check is all you need.

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photo credit: alexanderdrachmann via photopin cc

Zachary Strebeck

Zachary Strebeck

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