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Is it Trademark Infringement if it's nonprofit?
Anonymous2 views5 answers
I would like to make some t-shirts (maybe 10-20) with the name of a famous band member on it. Do you think a name could be trademarked? How about the band name? (This I'm not so sure about.) What if this whole thing was nonprofit? What if I did make a profit, but I then donated the profit? Would it still be nonprofit? Do I have the right from the first amendment to write on a shirt and to write for others on a shirt "I love __ band member?" without profit?
The use of a famous name may implicate rights of privacy or rights of publicity, which protects the rights of individuals to exploit the commercial value in their name and likeness. The band name could be trademarked, but even if not, use of the band name could present liability for palming off or unfair business practices. It doesn't matter whether the profit you earn is donated to charity or donated to your wallet. You've still earned a profit.
There is a common misconception that you have to charge money or make a profit in order to constitute infringement. That is false. Whether you make a profit could have an impact on a damages calculation, but trademark infringement is trademark infringement regardless of whether you are a "non-profit" organization or "for profit."
Yes, band names can be, and usually are, trademarked.
A name used in commerce can be trademarked, so can a band's name. Profit, non-profit is irrelevant for TM purposes. TM protects the consumers from confusion as to the source.
Yes, the 1st Amendment gives you the right to express any feelings you wish, but you cannot make a business out of your feelings because commercial expression can be, and is, regulated by Congress.
James JuoIntellectual Property Law AttorneyLos Angeles, CA ·
The band's name may be protected by trademark law (federal and state law). The "famous" band member may have a right of publicity (state law) that would prevent you from associating yourself with him or her without permission. This applies whether the infringement was for profit or not. The value of one's endorsement (commercially or for charity) would be decreased if one could not control one's name and/or likeness.
The other responses in this thread discuss various legal principles that would be applicable to the analysis of the situation you write about. You and your attorney should take them into account when deciding what is appropriate to do.
In addition to those principles mentioned, I would add the concept that "nominative use" of someone's trademark may be acceptable. I've co-authored an article on this, published in World Trademark Review (2010). The link is below. (I believe that a reader would need to register to access the publication.)
