Am I infringing in copyright when I use copyrighted names in promotions/advertisements?

[qazex]

Hello,

I currently own a jewelry business, and my products are based off of artists and franchises (or at least that is the long-term goal). I currently have one product so far, and it is based upon a popular kpop group, BTS. I have not used their logo or any copyrighted names/phrases on my jewelry specifically, however, I have been using their name in descriptions and promotional content I have been making on the business social media. For instance, I would use phrases such as "inspired by BTS," "in tribute to BTS," and "BTS earrings." I have found out recently that the word "BTS" is copyrighted and I was wondering if using their name in such a way would be a copyright infringement. With only having one product so far, I would like to make sure I am doing this correctly before I proceed in making new jewelry.

Any help in this matter will be greatly appreciated, and I thank you for your time!

 

[quincy]

What is the name of your state or, if not in the U.S., what is the name of your country?

Using the BTS trademark or any copyright-protected BTS material (or any other trademark or copyright-protected material) to promote yourself, your products and/or your jewelry business, without express permission from the rights-holders, can result in your receipt of a cease and desist letter with a demand for compensation, a seizure of your goods, and/or a costly infringement lawsuit filed against you.

 

[qazex]

What is the name of your state or, if not in the U.S., what is the name of your country?

Using the BTS trademark or any copyright-protected BTS material (or any other trademark or copyright-protected material) to promote yourself, your products and/or your jewelry business, without express permission from the rights-holders, can result in your receipt of a cease and desist letter with a demand for compensation, a seizure of your goods, and/or a costly infringement lawsuit filed against you.

State is Nevada!

That makes sense. I thought it would be alright considering the product itself doesn't have any copyright-protected material/trademark, but I started to second guess myself since I used their name for promotional matters. Glad that I asked before I continued!

If instead I used phrases that allude to them but don't directly use their name for promotional material (i.e. "inspired by current global kpop sensation"), would this be okay? Speaking of names, if I were to create jewelry pieces based off of individual members in the future, would the same principal of copyright infringement be applied even if I, for example, use the individual's name in advertisements (that is technically not trademarked or protected by copyright)? Perhaps a better example of this question would be stating phrases such as "Inspired by Michael Jackson" in promotional videos on jewelry based off of him. Would this still go against copyright infringement?

Thank you so much for your response, by the way! I really appreciate it!

 

[quincy]

State is Nevada!

That makes sense. I thought it would be alright considering the product itself doesn't have any copyright-protected material/trademark, but I started to second guess myself since I used their name for promotional matters. Glad that I asked before I continued!

If instead I used phrases that allude to them but don't directly use their name for promotional material (i.e. "inspired by current global kpop sensation"), would this be okay? Speaking of names, if I were to create jewelry pieces based off of individual members in the future, would the same principal of copyright infringement be applied even if I, for example, use the individual's name in advertisements (that is technically not trademarked or protected by copyright)? Perhaps a better example of this question would be stating phrases such as "Inspired by Michael Jackson" in promotional videos on jewelry based off of him. Would this still go against copyright infringement?

Thank you so much for your response, by the way! I really appreciate it!

When creating and promoting your jewelry you must avoid using another’s fame (their names, likenesses, personas, trademarks, copyrights) to attract consumers to your own goods (or services).

If consumers are attracted to your jewelry because they believe you are in some way affiliated with a famous person or entity, that your jewelry has their endorsement, you have likely infringed on their rights.

There are several rights held exclusively by BTS. These rights are trademark rights which can include but are not limited to names, slogans, logos, colors. These rights are copyrights which can include music, lyrics, photographs, drawings. These rights are publicity rights which include the right to control how their names, likenesses, images, etc. are presented to the public and the right to profit off their names, etc. And these rights can also include privacy rights and the right to a keep others from sullying their reputations.

BTS and the band’s agency (Big Hit Entertainment) won an infringement action not too long ago over the use by a cosmetics company (Lalalee) of a phrase recognized widely as a BTS trademark (“Borahae” which means “I purple you”). Lalalee wanted to use the name to capitalize off the popularity of BTS.

Trademark holders and famous people/entities are, as a rule, extremely protective of their rights and generally will not hesitate to take legal action against infringers.

There are times when you can use famous names, images, trademarks and copyrighted works without fear of a lawsuit, by the way - but using these in a commercial way is rarely one of those times.

You might want to have all specifics of your intended uses of BTS personally reviewed by an IP attorney in your area.

 

[qazex]

When creating and promoting your jewelry you must avoid using another’s fame (their names, likenesses, personas, trademarks, copyrights) to attract consumers to your own goods (or services).

If consumers are attracted to your jewelry because they believe you are in some way affiliated with a famous person or entity, that your jewelry has their endorsement, you have likely infringed on their rights.

There are several rights held exclusively by BTS. These rights are trademark rights which can include but are not limited to names, slogans, logos, colors. These rights are copyrights which can include music, lyrics, photographs, drawings. These rights are publicity rights which include the right to control how their names, likenesses, images, etc. are presented to the public and the right to profit off their names, etc. And these rights can also include privacy rights and the right to a keep others from sullying their reputations.

BTS and the band’s agency (Big Hit Entertainment) won an infringement action not too long ago over the use by a cosmetics company (Lalalee) of a phrase recognized widely as a BTS trademark (“Borahae” which means “I purple you”). Lalalee wanted to use the name to capitalize off the popularity of BTS.

Trademark holders and famous people/entities are, as a rule, extremely protective of their rights and generally will not hesitate to take legal action against infringers.

There are times when you can use famous names, images, trademarks and copyrighted works without fear of a lawsuit, by the way - but using these in a commercial way is rarely one of those times.

You might want to have all specifics of your intended uses of BTS personally reviewed by an IP attorney in your area.

thank you so much for answering my questions! I heard about the case with the cosmetics company and I knew outright using the brand name/logo/popular phrases would not end well in the long term so I stayed far away from that haha

Like you suggested, I will get in contact with an IP attorney and hash out what I could do instead in my promotional aspects to avoid any further infringements.

Thank you again!

 

[quincy]

thank you so much for answering my questions! I heard about the case with the cosmetics company and I knew outright using the brand name/logo/popular phrases would not end well in the long term so I stayed far away from that haha

Like you suggested, I will get in contact with an IP attorney and hash out what I could do instead in my promotional aspects to avoid any further infringements.

Thank you again!

You’re welcome, qazex. I appreciate the thanks.

You might also want to search online for the BigHit Entertainment lawsuit against MGM Media over its unauthorized uses of BTS rights-protected material (names, images, DVD). BigHit has won one $20 million injunction against MGM Media and it looks like another suit might be in MGM Media’s future for violating the injunction.

BigHit is actively pursuing any infringers so you are wise to see an IP professional in your area before using any of BTS’s valuable intellectual property.

I wish you much success with your jewelry business.

 

[adjusterjack]

With only having one product so far, I would like to make sure I am doing this correctly before I proceed in making new jewelry.

The correct way is either

1 - Get consent which will likely mean buying a license. Seems like everybody who posts about infringement wants to sidestep that.

2 - Don't refer to anybody else's name or product, no matter how subtle, in the marketing of your product. Period.

Seems to me if you are creative enough to create the jewelry you ought to be creative enough to create the appropriate marketing method without riding anybody's coat tails.

 

[quincy]

A license from BigHit to use BTS or BTS material in marketing is highly unlikely to be granted to a beginning small jewelry business - and any license stands to be exorbitantly expensive. But, yes, permission from rights-holders to use rights-protected material is necessary to avoid a lawsuit.

 

[zddoodah]

Am I infringing in copyright when I use copyrighted names in promotions/advertisements?

There is no such thing as a "copyrighted name." Names are not subject to copyright. However, names may be protected by trademark law and/or the laws governing the right of publicity, and whether using them "in promotions/advertisements" would or would not violate anyone's rights is impossible to determine in the abstract.

I currently own a jewelry business, and my products are based off of artists and franchises (or at least that is the long-term goal). I currently have one product so far, and it is based upon a popular kpop group, BTS. I have not used their logo or any copyrighted names/phrases on my jewelry specifically, however, I have been using their name in descriptions and promotional content I have been making on the business social media.

So...you're seeking to profit off of someone else's fame? While I'm not sure what it might mean to base a jewelry product on a "kpop group" (whatever that might mean) without using any names or logos, using this group's name in advertisements is almost certainly a violation of the group's trademark rights.

 

[quincy]

A “kpop” group is a Korean popular music group of which BTS is the most famous worldwide. K-pop originated in South Korea.

 

[PayrollHRGuy]

K-pop originated in South Korea.

Hence the K in K-Pop.

 

[quincy]

Hence the K in K-Pop.

Yup.

My kids are big fans of BTS. The members are pretty likeable and their music isn’t bad.

 

[not2cleverRed]

Speaking of names, if I were to create jewelry pieces based off of individual members in the future, would the same principal of copyright infringement be applied even if I, for example, use the individual's name in advertisements (that is technically not trademarked or protected by copyright)?

DON'T. Just don't.

Besides, depending on the jewelry item, you might be doing something really cringy - like, if you are "inspired" by the Generation Unlimited bracelets.

If you are just copying some dangly earrings, market the earrings as what they are: physically describe them.

 

[quincy]

Just to give an idea of who is granted licenses to use BTS rights-protected property, the following are just a few of the very big companies that were able to acquire licensing/collaboration agreements: McDonald’s, Universal Music Group, Mattel, Hitachi, Puma, Starbucks, UNICEF. And BTS has official merchandise for sale through their official websites.

If you are not a multi-million/billion dollar company, you would not be granted a license because you would not generate the type of income necessary to make a licensing agreement profitable for BTS and the rights-holders.

 

[qazex]

Thank you all for answering my questions!

I will get more direct guidance with some consultations I have set up, but from what I have deducted through your answers and more research, I will essentially cease promotional materials that would directly allude to certain groups entirely. This could actually give more incentive for my audience to figure out who or what is behind the intention of the jewelry I'm making which could be beneficial for traction.
What user not2cleverred said did make me think about another issue though. Is it okay to mention (in this case BTS) in my product description? To give you a little more context, the earrings I designed are gold rose and pearl themed along with hidden roman numerals on the back of the earrings that indicate BTS's debut date. Would the mention of "BTS" be considered fair use in this case, considering it is a descriptor and I make clear that I am not endorsed/sponsored?

If you are not a multi-million/billion dollar company, you would not be granted a license because you would not generate the type of income necessary to make a licensing agreement profitable for BTS and the rights-holders.

Not in a million years would I even think I would be grated such a license! I'm happy to hear that your kids are fellow fans of BTS though! If they are interested, I would love to send them the earrings I designed (for free in thanks to your help haha see spoiler tab below )

Spoiler

And happy new years to those who are reading this!