Can a copyright trump a trademark?

[windisright]

What is the name of your state?
Georgia.

So lets say that I created the concept "life is good." It originated with a drawing of a stick figure smiling and then I the artist wrote "life is good" under it. It is original and instantly copyrighted upon completion without having to be registered correct?

Now lets say a savvy entrepreneur sees the art on display and decides this will be the next great t-shirt company, (which btw they do over $100M per year and have never advertised.) So the entrepreneur makes it his own brand, puts a ™ on it, files for and receives a ®.

Now the question arises when I discover that my © art ("life is good" with smiley face stick figure) is ® and selling through the roof. Will the copyright trump the trademark?

Also, would it matter if I was selling t-shirts myself, lets say a couple to friends or none at all?

How much of a difference would it make if the © was originally federally registered?

 

[FlyingRon]

Copyrights and trademarks do not "trump" one another. Both exist separately or together.

Yes, your picture is protected by copyright the moment it is expressed in tangible form.
That is not to say that you can use it in commerce if you would infringe on an existing trademark.

The copyright protects your individual expressions.
The trademark protects terms and symbols in commerce.

 

[justalayman]

I will say that if there are copyrights, they do trump trademark in this situation. Since OP owns the art, he can control who creates copies. He has a valid action against the entity using it as a trademark because OP's copyrights are being infringed upon.

 

[windisright]

To: Flying Ron

I understand that I can not use my copyright if it would infringe someone else's trademark. But what if they are using my copyright as their trademark?

If someone can use my copyrighted expression in commerce what is the protection offered by the copyright in the first place, that they can't paint the same picture?

 

[windisright]

I will say that if there are copyrights, they do trump trademark in this situation. Since OP owns the art, he can control who creates copies. He has a valid action against the entity using it as a trademark because OP's copyrights are being infringed upon.

This seemed logical to me, just haven't found any cases where these challenges exist. Anyone know of any?

 

[FlyingRon]

You have to apply both rights to the the use involved. While they can have a trademark that is embodied by your art, they need your permission to reproduce the art. Likewise, if they have a trademark, even though you have the copyright to the art, you can't use it in commerce in an infringing way. One doesn't TRUMP the other. Copyright covers reproduction. Trademark covers use of the mark in commerce.

Note however, copyright doesn't cover "concept." The concept of a stick figure with "Life is Good" isn't protected by your copyright. I can create original art, not derived from yours that is not infringing.
In fact, titles and short phrases are not protectable by copyright.

 

[ecmst12]

This sounds suspiciously like homework.