Monday, September 22, 2014

Can I Replicate Bar From TV Show?

Dear Rich: My business partner and I are interested in starting a replica bar based on a location from a popular TV show (no, not Cheers). I can't find any evidence that the bar name in question is trademarked, though the name of the original show certainly is. Regardless, I'm guessing the characters and settings are all covered by copyright. Still I wonder if there is any way we can use the name from the show without violating copyright? If we were to model the bar's design/decor after the location from the show, would that violate copyright?  If you are pursued by the TV show's owners, most likely you'd be pursued under trademark claims, not copyright. That's because the injury claimed by the TV show is primarily based on customer confusion. At least, that was the approach taken by DC Comics, owner of Batman, when it sued a chain of Batcave comic book stores that appeared in the 1980s. DC Comics claimed that consumers would associate the stores with its brand. Even though BATCAVE was not a registered trademark, the comic book company prevailed in court based on its common law trademark rights. This same rule may hold true under trade dress principles -- that is, even if you don't use the name of the bar. Bottom line, we can't tell you whether you will get hassled but you might want to get a second opinion from a trademark attorney before investing serious dinero in the project.
What about copyright? Copyright does protect characters and settings provided they are distinctly defined -- that is they must be more than what are known as scénes à faire.
P.S. Dept. Also beware of including any replicas of actors from the TV show in your bar setting.