Author: Monika Alisauske, Lawyer
- Commercial significance of animated characters
- The protection of animated characters as trademarks
- Lawful use
In the modern entertainment industry, one of the most valuable assets is well-known characters, including both real people and fictional animated characters. Many people are familiar with animated characters such as Bugs Bunny, Teletubbies, the Simpsons, or the characters of Walt Disney, such as Donald Duck, Mickey Mouse, and others.
Names and images of these animated characters have also become the source of commercial revenue since the names and/or the images of such characters are being used in commercial activities to mark various goods and services, such as toys for children, lunch boxes, clothing, etc. as well as for other purposes, such as the promotion of fast food restaurants.
It is due to the wide use of the names and images of the animated characters in commercial activities that individuals who have exclusive rights to such characters seek to defend their rights and take all possible measures to stop the unlawful use of animated characters and to reimburse losses resulting from their unauthorised use. In these cases, usually, the measures of copyright protection are applied for protecting the results of creative activity and the trademarks in order to protect the name and/or image of the animated character.
Although both copyright and trademark protection is equally important, trademark protection has a greater advantage. The main advantage of the trademark protection is that the protection of a trademark can be obtained for an ‘indefinite’ period, i.e. the trademark protection will be valid for the whole period of registration of the mark (10 years), which may be extended. Meanwhile, copyright protection will only be valid for the statutory period, and when it is over, the protected object will be available to the public.
By registering the name and/or image of the animated character as a trademark, it will be subject to the protection of trademark, which relates to the use of trademarks in commercial activities and their main function – identifying and separating goods and services of one person from the goods and services of another person. In this case, particular attention is paid to the use of the animated character as a trademark in commercial activities, since, as already mentioned, this protection is intended to prevent misleading consumers about the source of goods or services, for example, the consumers who have seen goods with the image of Mickey Mouse will relate these products with Walt Disney Company or will assume that they have been produced and labelled with the permission of the company. So, if third parties use the image of Mickey Mouse without the permission of the Walt Disney Company, the consumers may be misled about the source of the product and/or service and its relationship with the Walt Disney Company.
Another advantage of the protection of trademarks can be the condition of ‘less similarity’, which means that in order to establish the infringement of the rights of the trademark proprietor it is sufficient to establish that the trademark used by third parties is sufficiently similar to the earlier mark and that it may mislead the public. Thus, when comparing the trademarks it is not required that the trademark used by third parties was identical or almost identical to the earlier mark.
In summary, it can be said that as soon as animated characters become well known the registration of such characters as trademarks can provide not only direct benefits – ensuring trademark protection against third parties, but indirect benefits as well – reducing the access to the market for goods and/or services that can mislead the public about the source of commercial origin, thereby ensuring the legitimate preservation of the reputation of the trademark proprietor. It goes without saying that the use of trademarks with animated characters may also be legitimate if such trademarks are legally registered and used with the consent of the trademark proprietors, for example by obtaining a license. However, it is important to bear in mind that, in case of lawful use, the packaging of goods usually indicates that the goods are manufactured and labelled using a corresponding trademark with the permission of its lawful proprietor.