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Legal Question (Trade Dress)
I've been tasked with designing the cover of a new catalogue at work, and my boss has asked for it to look like the 'For Dummies' books - but it would be 'Promotional Products For Marketers'. And it's just the front and back covers that mimic the design, and there's no literature inside - it's just a normal catalogue which consists of items that we sell.
I've had a look at the copyright information inside one of the books and the design wouldn't infringe on most of the copyrights/trademarks (i.e. we're not using the 'For Dummies' phrase, nor are we using their cartoon character or any other listed phrases), however I'm worried that it might infringe on their 'trade dress' copyright.
I've had a look online for other cases and generally it's just been cases of cease and desist orders being sent to people using mock covers and the 'For Dummies' name. There was one that specifically mentioned the black/yellow covers, but most of them are quite vague. I have designed it as black and yellow, but that's easily changed. However, the colours in our current logo/branding are actually black and yellow, so it's really just the layout that's the problem.
I've done a little research into the trade dress law and it seems like there has to be evidence of confusion (i.e. people thinking that Wiley Publishing have released it, not us), and that Wiley would have to prove that there has been damage to their brand.
I guess my question is - would we be opening ourselves up to legal action for releasing a catalogue (which we wouldn't be charging for) that happens to be similar to the 'For Dummies' books?
In some cases that I found, Wiley have just asked for an acknowledgement at the bottom of a website to say that the 'For Dummies' phrase and trade dress is copyright of Wiley. If I added that on the inside, would that help? Or would it just draw attention to the fact that it's been copied? (Although I wouldn't call it a 'copy', personally - more an 'homage'.)
I'm happy to send a screenshot of the front and back covers to anyone that knows anything about this area!
Thanks!
I've had a look at the copyright information inside one of the books and the design wouldn't infringe on most of the copyrights/trademarks (i.e. we're not using the 'For Dummies' phrase, nor are we using their cartoon character or any other listed phrases), however I'm worried that it might infringe on their 'trade dress' copyright.
I've had a look online for other cases and generally it's just been cases of cease and desist orders being sent to people using mock covers and the 'For Dummies' name. There was one that specifically mentioned the black/yellow covers, but most of them are quite vague. I have designed it as black and yellow, but that's easily changed. However, the colours in our current logo/branding are actually black and yellow, so it's really just the layout that's the problem.
I've done a little research into the trade dress law and it seems like there has to be evidence of confusion (i.e. people thinking that Wiley Publishing have released it, not us), and that Wiley would have to prove that there has been damage to their brand.
I guess my question is - would we be opening ourselves up to legal action for releasing a catalogue (which we wouldn't be charging for) that happens to be similar to the 'For Dummies' books?
In some cases that I found, Wiley have just asked for an acknowledgement at the bottom of a website to say that the 'For Dummies' phrase and trade dress is copyright of Wiley. If I added that on the inside, would that help? Or would it just draw attention to the fact that it's been copied? (Although I wouldn't call it a 'copy', personally - more an 'homage'.)
I'm happy to send a screenshot of the front and back covers to anyone that knows anything about this area!
Thanks!
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Comments
If you just looked at the back cover by itself then you probably wouldn't make the connection to the FD books, it's just the front cover. I could change the shade of the yellow because we do sometimes use a black/sunflower combo in our branding rather than black/yellow. But I still don't know if that would be enough.
I could also change the name to something like 'Promotinal Products in the Marketing Mix' to avoid using 'for', but I don't think that would alter the likeness of the trade dress.
In any case, is it a good idea to produce a catalogue that imitates the look of an established product from another company? Even if it's not passing-off, it could be argued that you're using their reputation to sell your products.
Unfortunately that sounds exactly what the OP is aiming to do!
They can't copyright the colour combination as such, but they can have a claim over specific colours that are laid out in a specific way.
I guess we are, but not in a 'rip-off' kinda way. We're not trying to stealing business from them, we're just trying to have something that's recognisable and that draws people's attention.
It's a US term, but the UK has something similar, just called something else. But it would be under the jurisdiction of the US anyway since that's where the copyright is held.