I've started selling a series of educational audio commentaries for popular films. I want to call them what they are (i.e. My Avatar Commentary, My Iron Man Commentary, etc.) and have domain names to match (i.e. MyAvatarCommentary.com, MyIronManCommentary.com, etc.). I'm just concerned that I'll run into legal trouble, since I'm using trademarked phrases in the titles of my audio programs.
On RedLetterMedia.com, Mr. Plinkett sells audio commentaries and just calls them what they are (i.e. Mr. Plinkett's Star Wars Episode 4: A New Hope Commentary, etc.). I don't know if he's had any legal issues with it or not.
If this is a problem, how else can I tell my audience what film the audio commentary belongs to, in the commentary's title, without violating trademark law?
You can use trademarks and trademark phrases in a descriptive way. A commentary on Ford Mustangs, for example, cannot be written without using the trademarks Ford and Mustang.
One area where you can run into difficulty with trademark use is with "consumer confusion." If a consumer believes or is likely to believe that you are affiliated with (endorsed by, sponsored by) the trademark holder, that can give rise to a trademark infringement suit. Consumer confusion can be created by both the use of a trademark with the product/service and when a domain name directs consumers to a site if consumers are led to believe that they are being directed to a site owned/operated/endorsed by the trademark holder.
Another area where you can run into difficulty with trademark use is when you are profiting off the trademark holder's reputation by using the trademark solely to promote your own product or service, drawing consumers to your product because of trademark recognition. That can give rise to a suit under state or federal unfair business practice laws.
And another area where you can run into difficulty with trademark use is with the content of your commentary. Critical commentaries can be written but the criticism cannot defame the product or service with false facts. Defamation and disparagement suits can arise from negative and derogatory commentaries.
So there ARE legal issues to consider. You must handle another's trademark with extreme care so that you do not risk infringing on the rights of the trademark holder. The more famous the mark, the more likely you are to attract the attention of the trademark holder. Having liability insurance enough to battle a trademark holder if it becomes necessary is wise and advised.
I recommend you have all of your plans reviewed by an IP attorney in your area, this to best ensure that your product can withstand a legal challenge.
Good luck.
