If I create a fictional brand name in a movie script and then copyright the script can the fictional brand name be considered my trademark?

Question

Let's say I write a movie script. The movie gets made and it does well. In the script a fictional brand exists with a specific, un-trademarked name. Now let's say someone created a real brand that had the same name as my fictional brand and offered the same product; would I have grounds to sue?

Answer 1

If I create a fictional brand name in a movie script and then copyright the script can the fictional brand name be considered my trademark?

No. The fictional brand name (which I often call a "fakemark" in this context) cannot become a trademark from the movie or its script alone.

To register a trademark federally under the Lanham Act you need to describe a novel mark and you have to show that it has been used in interstate and/or international commerce. (You can file an intent to use application to hold that trademark for a bit, but it isn't final until the proof of use in commerce application is filed.)

There are state common law trademarks, and evidence from state filings can help to prove a state common law trademark filing, but this just postpones the timing of showing proof of use in commerce sufficient to establish trademark protections prior to the time of infringement. In a state common law trademark you present proof in the court case alleging infringement and not to a government agency at the time you start claiming the trademark exists.

Now, if you created a spin-off real life business based upon a fake business in a movie, like Bubba Gump's Shrimp Company, at that point, you could get trademark protection for it. But, merely having a brand in a movie that is never used in actual commerce does not established a trademark.