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I'm a small business targeting name tags to the individual worker. Some orders are from the businesses themselves, but others are for lone workers that seek a better name tag. When a lone McDonalds, Best Buy, Chick-fil-a, etc. employee comes to me and wants the golden arches or other logo on their name tag, am I opening up an infringement or other liability?

The question keeps haunting me, but I think that the ordering party is essentially performing like an agent of their company and authorizing the usage of the logo. Please let me know if I'm woefully mistaken.

So that covers the manufacturing, but then I'm wondering if it is a different matter when I post a product for sale online that's particularly advertising the "Customized McDonalds Name Tag w/Logo" as the base product. If the on-demand making of them is allowed, then is this any worse?

Any input so that I don't step on my own feet would be much appreciated. Thank you!

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    This is not an answer but I will say anecdotally that many online 'design your own X' companies will refuse to print any copyrighted images even though I am the one supplying them with the image and they are only selling the product directly to me. Whether this is because they have all received similar legal advice or an abundance of caution is left to the reader.
    – Brian R
    Commented Oct 17, 2019 at 16:48

2 Answers 2

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There are at least two separate potential issues here, copyright and trademark.

Copyright

Unless a logo is so simple that it cannot be the subject of copyright protection (the Target logo is a well-known example) any logo will be protected by copyright, unless perhaps it is old enough that any copyright has expired. (The classic coca-cola red script logo would be an example of a logo whose copyright has expired.)

Reproducing a copyrighted logo without permission would be copyright infringement, unless an exception to copyright applies. In the US this would mean fair use. As this would be using the whole of the logo, would not be transformative, and might impede a market that the copyright owner could choose to exploit, it seems unlikely to qualify as fair use. Those non-US exceptions that I know of, such as fair dealing, also do not seem likely to apply. It seems likely that if a copyright owner brought a copyright infringement suit against such a business, it would be likely to win.

Of course one could attempt to obtain permission. I have no idea how likely the various copyright owners would be to grant such permission.

Trademark

Trademarks are protected against use "in trade" or in "commerce" without permission. The use of a trademark which soemoen else owns to identify your product, to pass off your product as actually made by the trademark owner, or to falsely imply or suggest that your product has been authorized, approved, or sponsored by the trademark owner. An ad for "Custom {brand} ID badge with authentic {brand} logo" might well be trademark infringement.

A well-worded disclaimer making it clear that this is an independent use of the mark, in reference to the brand, but not by or authorized by the brand, can sometimes avoid trademark infringement liability, dependign on the exact facts.

Making a custom badge to order, without using the mark to advertise or label your product, would probably not itself be trademark infringement.

Accessory to Fraud

If you make a custom badge for a person who is not in fact a legitimate employee or agent o the company whose logo is used, might well cause problems. If that person used the badge to falsely pass himself or herself off as an employee, that person might have committed fraud or some other offense. And in that case you might be considered an accomplice, particularly if you have made no attempt to verify that the person was in fact an employee or agent of the firm whose logo was used.

Some verification policy might be a wise idea.

Conclusion

There are some legal risks to such a business, but trademark infringement is perhaps the least of them.

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  • A verification sign off that also indemnifies you if they don't have permission to use the mark would be even better.
    – ohwilleke
    Commented Jan 25, 2022 at 2:25
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    @ohwilleke Yes that would be very nice but I doubt it is to be had. But any evidence showing due diligence might well be helpful. Commented Jan 25, 2022 at 3:34
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    I wish that any downvoters would leave a comment indicting what they think is wrong with this answer. In the absence of a comment, I cannot improve the answer, others cannot use the reasons to write better answers, and readers have no idea why someone objects to the answer. Such a downvote seems pointless. Commented Jan 25, 2022 at 16:06
  • Actually, indemnification clauses are rather common in this kind of transaction. I've probably seen six independent firms with these a verification and indemnification agreement for selling goods the contain a trademark or potential copyrighted element.
    – ohwilleke
    Commented Jan 25, 2022 at 19:25
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    @ohwilleke Really? Well live and learn. Thanks Commented Jan 25, 2022 at 19:45
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I am pretty confident that one can freely buy and sell such items as police officer badges, purple heart medals, doctor's white coats, etc. If there is a violation of the law, it is when one uses a police officer badge to make an arrest when one is not a police officer, purple heart medal to obtain a material benefit that is ordinarily only available to veterans, or a doctor's white coat to impersonate a doctor.

IANAL, but I think that if one of your clients uses your product to fraudulently obtain the respect and/or authority that society pays to McWorkers, then it is on them not you.

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  • If you are analogizing police badges to McDonalds's name tags, he is not just selling police badges - he is making phony police badges. Commented Oct 16, 2019 at 21:04
  • @GeorgeWhite a police badge is not a phone police badge until it is used fraudulently.
    – emory
    Commented Oct 16, 2019 at 21:12
  • It better not be a current federal badge U.S. Code § 701. Official badges, identification cards, other insignia U.S. Code Notes Whoever manufactures, sells, . . . of the design prescribed by the head of any department or agency of the United States for use by any officer or employee thereof, . . or in any other manner makes . . any engraving, . . . in the likeness of any such badge, . . imitation thereof, . . . shall be fined under this title or imprisoned not more than six months, or both. Some states also prohibit this - don't sell a Texas Rangers badge in Texas! Commented Oct 16, 2019 at 21:24
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    The items you list are not trademarked and not analogous. The question seems to be about selling an item with a logo that has not been licensed.
    – Damila
    Commented Oct 17, 2019 at 1:02
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    @JohnFisher My comment was directed at the answer, not at your question.
    – Damila
    Commented Oct 17, 2019 at 3:07

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