Hacker News Reader

Comment by rbanffy | Hacker News Reader

They are two very different products in completely different markets. In many jurisdictions any such lawsuit would have no standing.

View on HN

That's not correct. In fact, there was a relatively recent Supreme Court case where a "joke products" maker (I don't remember the exact products, I think they were dog toys or something) basically made them look like Jack Daniels products. They argued it was a spoof, so should be protected. The court ruled against them, saying that even though they were selling in a totally different arena, they were still coasting on the public's familiarity with the Jack Daniels brand, and someone might think that JD themselves had authorized the spoof products.

I'm not sure that all applies here, but "Marcel the Shell" obviously belongs to and is associated with one specific brand, and the author of this nix shell is riding on that. It's not like when someone tries to trademark "Apple" in 2 different contexts.

The Supreme Court case didn't find the dog toy satirizing Jack Daniels was infringing, just that it was possible and a jury should decide rather than the case being dismissed.

Right, the court's holding simply held that a trademark infringement claim concerning the commercial use of a trademark as a trademark was outside the scope of the Rogers threshold test ("the claim must be dismissed unless the complainant can show either (1) that the challenged use of a mark “has no artistic relevance to the underlying work” or (2) that it “explicitly misleads as to the source or the content of the work.”") and is moved directly to the next step which is the Lanham Act's "likelihood of confusion" analysis.

A trademark claim here might not be dismissed under Rogers, but I don't think there is any jury that could ever find that consumers were likely to become confused about whether or not the command line tool Marcel the Shell was affiliated with the independent film cartoon character, and even if that could be established, unlike Jack Daniels, what $$$ damages were caused in trademark dilution? 3 figures?

Being legally right and being morally right are often two very different things though. Like, they even have the full domain name of the original thing. If I were the owner of the original video and the subsequent film, I know I'd be, at least, annoyed.

What's the original thing? Sorry, I don't know the reference.

https://www.google.com/search?hl=en&q=marcel%20the%20shell

If I were the author of the original, I'd be thrilled. And would offer the character as the project's mascot tied to a set of conditions based on the success of the product so that, in case it fails to gain traction, it should be renamed and allow the name to be used by another product.

It's more or less the same spirit as the Roddenberry estate allows someone to use the names - you are allowed to build a warp drive, as long as it warps spacetime and allows FTL travel.

Reply on news.ycombinator.com