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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?

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  • I don't know enough to offer an answer but I suspect the producers or studio would own the rights, subject to their contract with the script writer.
    – user35069
    Jun 5, 2023 at 7:47
  • This may be of some interest: wipo.int/pressroom/en/stories/ip_and_film.html
    – user35069
    Jun 5, 2023 at 7:56
  • I have seen examples of this situation. Namely a T-shirt which looks like advertising a specific drink brand. However the brand only exist inside a computer game. Unfortunately I don't know whether the T-shirt manufacturer has some kind of agreement with the game producer or not.
    – quarague
    Jun 5, 2023 at 8:12
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    The Wikipedia article Duff Beer covers various attempts to market genuine examples of fictional beer from The Simpsons. It may vary from country to country, and will also depend on how much you and they can spend on lawyers.
    – Stuart F
    Jun 5, 2023 at 9:51
  • @Jen. Copyright as in I registered the script with the federal government as copyrighted intellectual property. Jun 6, 2023 at 5:30

1 Answer 1

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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.

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  • Interesting. That answers my question. Jun 6, 2023 at 5:25
  • To ask a slightly different question. Let's say someone makes a real business with the same name as my fictional business and then later I make a business with the same name. Can THEY sue for trademark infringement? Jun 6, 2023 at 5:27
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    @SlowlySwift Yes.
    – ohwilleke
    Jun 6, 2023 at 12:29

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