March 28, 2024
Knowledge TMF Exclusive

Trademarks & Halloween –  Just a Bunch of Hocus Pocus?

halloween

Trademarks & Halloween –  Just a Bunch of Hocus Pocus?

It’s that time of the year again. In most houses, pumpkins are being carved, and costumes are being chosen, but what are businesses up to? A lot of them are busy protecting their intellectual property, something there is surprisingly a lot of when it comes to Halloween.

Under U.S. law, two criteria need to be met for a trademark to be eligible for registration. First, the trademark needs to be used in commerce. Second, the trademark needs to be distinctive. Though many people think of trademarks as words or logos, a product’s physical features can also be trademarked. This is where a Halloween costume can find itself in a spooky situation.

Perhaps one of the most famous examples of a trademark showdown regarding Halloween costumes is the 2008 lawsuit Disney filed against a small party-store business in Florida. The store advertised two costumes that resembled Tigger and Eeyore just a little too closely. Since Disney has these characters trademarked, the store – and its owners – were infringing. They ended up paying Disney $1 million for a few simple costumes.

Though the issue seemed simple enough in the Disney lawsuit, that’s not always the case. Often, things get held up at the “distinctiveness” criteria. This is true in the case of Beetlejuice. Say you want to dress up as your favorite Halloween movie character, Beetlejuice, this year. Can anyone legally sell you what you need? The answer is yes! Warner Brothers does have some aspects of Beetlejuice trademarked, most notably Beetlejuice toys and action figures. Still, they can’t trademark the outfit itself because black and white stripes aren’t seen as distinctive enough.

Another example of something not being considered distinctive enough to trademark is the mask of the famous Halloween character Michael Meyers. Since the Meyers mask is made from a facial mold of a real person, it’s not considered creative or “distinctive” enough to be trademarked.

The Michael Meyers mask not being trademarked makes a lot of sense, as you see it pop up in many TV shows and movies, most recently notable in Stranger Things when an innocent fugitive goes incognito using a Michael Meyers mask.

Speaking of Stranger Things, what about those fabulous Ghostbusters costumes the crew wears in Season 2? Those costumes are distinctive, aren’t they? Yes, they are! In fact, there is a trademark in place that protects Ghostbusters from being used in many categories, including costumes. Does that mean the Duffer Brothers infringed? No! Since the Duffer Brothers asked permission from the trademark owners, who were excited about the throwback moment and quickly agreed to the costume usage, they can’t get in any legal trouble for their characters donning the costumes.

These examples are just a few of the many out there regarding Halloween trademarks. Still, they’re enough to show how complicated and layered the issue of trademarks at Halloween can be.

The good news? You’re safe unless you’re a business or plan to make money off your costume this year. Go have fun. Eat way too much candy. Sleep soundly knowing you’re safe from a lawsuit.

If you’re a business or other commerce-making entity that will profit from that authentic-looking costume, put aside the candy, fun, and sleep, and make sure you do your homework first!

 

As always, Trademark Factory can offer you a Flat fee trademarking service!

 

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