By Rebekah O’Sullivan and Matt Burgess, Director.
Brightspark Production Ltd., a British film company marketing a number of direct to DVD titles has been sent a strong warning by Disney Pixar to stop releasing their DVD’s which ‘bear an uncanny resemblance,’ to Disney film titles.
Brightspark’s latest DVD release to the market is a ‘45 minute animated fairytale that features a redheaded princess in a green dress on its cover.‘ Brightspark’s film is called, ‘Braver.’ The film’s picture cover and name is strikingly similar to that of Disney Pixar’s, ‘Brave.’ Disney Pixar is taking immediate legal action in a bid to stop Brightspark from selling any more films of this kind to the market, in a bid to avoid trademark confusion to their famous name.
Disney said in a statement: “People place great trust in the quality and creativity of Disney, and when it appears that another company is causing confusion among Disney consumers we will act to protect ourselves and the consumer. Disney believes Brightspark has demonstrated a pattern of misleading consumers with numerous releases that confuse and undermine the trust those consumers have in Disney.”
What is a Trademark?
Trademark law regulates the proper use of trademarks. A trademark is a word, symbol or phrase used to identify a particular manufacturer or seller’s product and distinguish them from the products of another.
Trademarks make it easier for consumers to quickly identify the source of a given good. Instead of reading the fine print on a movie, consumers can look at the Disney trademark and instantly recognise the product. By making goods easier to identify, trademarks also give manufacturers an incentive to invest in the quality of their goods. After all, if a consumer watches a Disney movie and finds the quality lacking, it will be easy for the consumer to avoid Disney movies in the future by avoiding the recognisable trademark and resorting to buying another brand.
Trademark protection can be acquired in one of two ways: (1) by being the first to use the mark in commerce; or (2) by being the first to register the mark at the Australian Trademark office. Therefore, even if you don’t register your trademark if you are the first to use the name ‘Braver,’ for a movie title, you will probably be able to prevent late comers from releasing another movie with this title within your geographic market.
What constitutes trademark infringement?
If a party owns the rights to a particular trademark, that party can sue subsequent parties for trademark infringement. The standard test is that there is a “likelihood of confusion.” To be more specific, if the use of the trademark in connection with the sale of a good, causes consumer confusion as to the source of those goods or as confusion as to the sponsorship or approval of such goods, then infringement is likely to have occurred.
In deciding whether consumer are likely to be confused, the courts will typically look to a number of factors, including (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; and (6) the degree of caution exercised by the typical purchaser.
What have Brightspark done?
Brightspark has used a very similar mark or name on their movies as Disney Pixar, which may give rise to various claims by Disney Pixar. These claims are generally available if the marks are close enough in sound, appearance, or meaning so as to cause confusion. Therefore, the use of an identical mark “Braver,” on the same movie product would clearly constitute infringement of Disney’s movie, “Brave.” Brightspark is likely cause confusion among consumers, since they may be misled into thinking that the movies are made by Disney.
There are also other infringements by Brightspark: Tangled up, highly similar to Tangled; The Frog Princess, not to be confused with The Princess and the Frog; and Little Cars – which isn’t Cars. To a consumer buying a movie, there is a great possibility that there may be a likelihood of confusion between the makers of the movies.
What action can I take if someone infringes upon my trademark?
In trademark infringement cases, the first step of action is usually to send the offending infringers a cease-and-desist letter demanding they withdraw their product from the market, or face litigation.
Due to the strength of remedies available within trademark legislation all around the world, the parties will usually enter negotiations quite swiftly and the threat of suing under the trademark legislation is either followed through with as a last resort or the matter is settled.
Disney Pixar has served a cease and desist on Brightspark and the parties are currently in negotiations to hopefully resolve the issue.
This blog is for discussion purposes only. This must not be considered legal advice.
For legal advice on this topic and references to any information in this article, please contact
Matt Burgess, Director:
Phone: +61 405 722 739
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