Are there any copyright/trademark lawyers on the forum? Issue with our mascot

[mouser]

Hi all,

Are there any copyright/trademark lawyers on the forum? If so, could you please send me a personal message through the forum.

I am not a big one for lawyers, and DC has always been a website focused on being good internet citizens.

Today I saw something that put a knot in my throat.. A new startup company focused on micro-payments with a mascot that seems to be using the idea of our very own Cody as their mascot, a bird with a coin in its mouth.

Perhaps if the company was doing somethign completely different than ours i wouldn't be so troubled, but the fact that they are also focused on microdonations really makes me think we have a problem here.

The website in question is: http://twitpay.me/p/intro

Their mascot logo:
Are there any copyright/trademark lawyers on the forum? Issue with our mascot

You can see our mascot Cody, designed by Nick Pearson, all over the DC website since 2005, and of course follow the public thread where he was created here: https://www.donation...dex.php?topic=1093.0

I feel very strongly about Cody, he has been an integral part of our site for three years now, and this troubles me greatly.

It's true that their bird looks different from ours.. but it's the idea of a bird with coin in its mouth representing a mico-payment website that makes it seem like it would lead to confusion and would be a case of trademark/logo violation.

I also know that with such things if you don't assert your legal rights you open yourself up to such claims against you.

--

Anyway I don't want to have a public debate about the legal issues on this thread here, so i ask anyone with input to contact me directly via the forum.  I'd appreciate suggestions of any sort.  I've already emailed the company and asked to speak with a legal representative.

I will update everyone on this issue as it progresses.  Hopefully their is a friendly solution.

However like i said i don't want to have a premature public discussion on the forum *yet* so i may lock this thread.. Eventually we will talk about it here as we do everything else.

[Ampa]

I know that you don't want a big debate going here... and I do sympathise with you fear that our precious Cody is being imitated... BUT...

I wanted to point out that the site you point to is a micropayment site designed to integrate with Twitter.

If you do a quick search for Twitter's logo you will find that it is a bird. So the concept of putting a coin into that bird's mouth is very likely an original (though not necessarily inspired) idea of TwitPay/

It seems unlikely to me that they are trying to rip off Cody, and my gut feeling is that there isn't much of a case

If this is exactly the kind of discussion you want to avoid on this thread, then please delete my post - I shall not take any offence.

Ampa.

[CWuestefeld]

IANAL, but I read legal blogs a lot  

People confuse copyright law and trademark law, but they're actually quite different areas of law.

Copyright law is intended to protect creative works. Clearly there is no issue with copyrights; it's obvious that neither image is a copy or even adaptation of the other.

Trademark law is not intended to protect the owner of the trademark at all. Its purpose is to protect the consumer.

The rules about uniqueness of trademarks are set up with the intent to keep consumers from mistaking one product or brand for another. Thus, it's OK for the name "Apple" to be in use by both Apple Computers and Apple Music (the publisher of the Beatles' stuff): nobody is going to pick up a Mac and wonder if it's a new Beatles recording. Similarly, there might be a "Moe's Bar" in Springfield and another in New York; the geographical difference makes mistaking one with the other impossible. Unfortunately in our situation, there does seem to be some proximity in terms of the product, so there could be confusion.

I don't know what the trademark analog of copyright's "prior art" is, or if such a concept even exists. Clearly DC's "Cody" was well-established before this other bird came on the scene. But with trademarks, maybe that's not enough. Maybe you actually need to register the image, I don't know.

Here is some information about trademarks. But you're probably better off talking to a professional.

I did a search for the trademark "Twitpay" and found nothing. Also, their logo has an "SM" next to it, indicating that it's a "service mark", i.e., a trademark for services. Note that it doesn't have an "(R)" next to it. That indicates to me that it's not a registered service mark. Perhaps the thing to do is to send a registration request for Cody to the USPTO straightaway, and preempt any argument.

[mouser]

I should say i do not believe they are purposefully trying to "rip off" our mascot. I ascribe no bad intentions to their act.

My concern is simply that when you combine the fact that both sites are about micropayments, which is a pretty darn rare thing, with the logo of a bird with a coin in its mouth, that that logo is going to lead to people thinking that the two sites are related, from the same company, etc.

On donationcoder we have long had buttons you can put on your website that let people click to make a donation to you:


And now imagine this company gets popular and starts putting little buttons with a bird and coin saying "donate to me"..

It just seems to me that the likelyhood of people confusing the companies or thinking that both companies and websites are related is very high.

Maybe it doesn't matter so much now that this site is small, and isn't doing anything we object to.  But i worry about the confusion if things take a different turn.

[mouser]

Wusterfields comments are right on the money.  It seems like trademark law and copyright law share some common issues in terms of "prior art" and the formality of registration.

See: http://www.uspto.gov...c/basic/register.htm

"Is registration of my mark required?
No. You can establish rights in a mark based on legitimate use of the mark. However, owning a federal trademark registration on the Principal Register provides several advantages.."


Anyway, let me say again:
I do not ascribe any malicious intent to this twitter site and new startup company.  I am not claiming they are copying our idea or that they are acting in bad faith.  I am making an attempt to contact them to see if the issue can't be resolved in a friendly fashion that results in their mascot being different enough in concept to limit the possibility of confusion between the two sites/companies.  I will report more as I learn more.

[mouser]

going to lock this thread now since i think we have some reasonable differing opinions expressed in very calm fashion and i don't want any chance of things getting acrimonious at this delicate stage.

i promise to open it back up for debate once we know more -- and i encourage anyone to contact me by personal message with their thoughts, regardless of your viewpoint on the issue.

[mouser]

After some emails I have received word from Twitpay that they have agreed to change their logo slightly to avoid the conflict.  It looks like the new Twitpay logo may be a bird with a dollar bill (or something similar) in his mouth instead of a coin.  It may turn out to be something different, but it seems like we came to a reasonable solution that i feel avoids any potential confusion between the two sites.  Hopefully the two mascot birds can now be friends.