Can I Sell Copyrighted or Trademarked Products by Changing Names?

Many individuals and businesses inquire about the legality of selling items that are copyrighted or trademarked, but with a tweaked name. For instance, changing the name from Slytherin to Slitherout, or from Ravenclaw to Raventalon. This article will explore the complex and shifty nature of such sales, in conjunction with the legal conundrums surrounding copyright and trademark law.

Understanding Copyrights and Trademarks

Copyrights and trademarks are two distinct forms of intellectual property. Copyright automates protection of original works of authorship, such as books, music, and software, while trademarks protect specific brand identities.

Copyright Law

Copyright protects against unauthorized duplication and distribution of creative works. However, purchasing a copyrighted item does not limit your freedom to resell it, as long as you do not reproduce the original work. For example, used bookstores may sell reprints of copyrighted books without changing the title or draping it in an alternative cover. This practice falls outside the scope of copyright concerns.

Trademark Law

Trademarks, on the other hand, focus on identifying specific sources of goods or services. Trademark law does not protect products themselves; rather, it protects the names, slogans, and logos used in branding and marketing. The primary concern is the potential for consumer confusion.

Consumer Confusion and Brand Identity

When you change a name that is closely associated with a well-known brand, such as altering Eagletalon to mimic Ravenclaw, consumer confusion can arise. Trademark law aims to prevent this confusion, ensuring that consumers can easily distinguish one brand from another. The similarity in mascot names, merchandise, color schemes, or logos can be enough to trigger a cease and desist notice from the trademark holder.

The Legal Gray Area

Despite these legal protections, there is a gray area where selling altered items is permissible. Independent artists at comic cons, for example, can legally sell merchandise inspired by copyrighted characters, provided they do not pass off their creations as the original artist's work. The key is intent: does the altered product created with original content or design?

Infamous Cases and Precedents

A classic example is the color black. In the case of Vanta Black, a color created by Japanese company Mitsubishi Chemical, the company established legal precedent. It successfully sued other manufacturers who used nearly identical shades, despite differing through slight variations. This case highlights the importance of distinctiveness in color schemes and branding.

The Risk of Cease and Desist Orders

While it is technically possible to sell products that are now branded under different names, you are taking on significant legal risks. Celebrities and brand owners such as J.K. Rowling are notoriously protective of their intellectual property. If you launch a product line that aligns too closely with an existing brand, you may receive a cease and desist order at any time. This legal action can put a swift end to your business venture.

Strategies to Mitigate Risk

To minimize the chances of receiving a cease and desist order, consider the following strategies:

Create Original Content: Ensure that your product design and branding are entirely original and do not replicate any existing works. Use Non-Confusing Names: Choose names that are significantly different from the original trademarks. Even slight homophones or alterations can potentially cause trademark issues. Niche and Specialize: Focus on niche markets where you can create unique and specialized products without direct competition from well-known brands.

Conclusion

In conclusion, while you can potentially sell products with altered names, the legal risks are substantial. If you choose to venture into this space, act with utmost caution and awareness of the strictures of copyright and trademark law. Consulting with a legal professional will provide you with the necessary guidance to navigate this complex landscape safely.