What is the name of your state (only U.S. law)? Florida
I am creating a simple website that involves listing certain Brand names as follows.
The brand name followed by a � (example: Dell�)
A short description (example: Dell� makes computers)
The brand name is also a link to the brand, example: clicking on Dell� will bring you to www.dell.com
At the bottom I have: "MyWebsiteHere.com is in no way affiliated with any of the above brands. All trademarks are the property of their respective owners."
The website makes no profit and doesn't sell anything.
Am I safe from getting my butt sued here?
Another question: I wanted to use the logos of the brands to make it look better, instead of just "Brand�". From my understading, logos are usually trademarked, which lets you use them under "fair use." However, unique logos may be copyrighted, in which case you can't use them without permission. Is this correct?
Thank you
No, you are not safe from getting your butt sued.
There is often no way to prevent a lawsuit. There are generally only ways to limit your risks of a suit being filed against you, or at least limit your risks of losing a suit should one be filed against you despite your best efforts to avoid one.
Logos are trademarks. They identify a business, a product or a service through a simple design, just like the name of the business, product or service identifies the business, product or service. The design of the logo can be original and creative enough to be protected not only under trademark law but also under copyright law.
There are some ways to use trademarks, and copyrighted material, that will not infringe on the rights of the trademark or copyright holder. These "ways" are often referred to as "fair uses," but it is important to remember that fair use is a
defense to rights-infringement and not permission to use rights-protected material.
If a rights-holder objects to the way their trademark or their copyrighted material is being used, they can sue. Then it will be up to a court to decide if the use is infringing on the rights of the rights-holder/plaintiff or not. What is or is not fair use of rights-protected material is decided on a case-by-case basis and relies on the facts presented in each individual case.
Because fair use is not permission to use rights-protected material but rather guidelines derived from numerous court decisions, it is advised that anyone who wishes to use material that has rights attached contact the rights-holder for permission. Being granted permission from the rights holder to use the protected material eliminates (for the most part) the risk of being sued by the rights holder.
That said, given past court decisions and going by established guidelines for use, trademarks can generally be used in a descriptive manner. If I am talking about a Coke product, I can use the trademarked Coke name instead of substituting a generic "soda" or "pop." If I am reviewing a Ford Escape, I can use the both the trademarked Ford and the trademarked Escape in the text of the review. Using a trademark in a descriptive sense is generally recognized as a fair use of a trademark and will be unlikely to spawn a lawsuit.
Using a trademark in comparative advertising (for example, in a Coke versus Pepsi taste test) can also be a fair use, if the comparative ad's claims are honest and supportable with evidence. This type of trademark use, when done properly, is also recognized by the courts as a fair use (although many comparative ads will lead to lawsuits or threats of a lawsuit, generally when claims are false or misleading).
Journalists can use trademarks in their news accounts (for example, in describing the type of get-away car or the attire of a suspect wanted for questioning, or when reporting on a business, service or product, or in journalistic reviews). This is generally considered by the courts to be a fair use of a trademark.
Parodists can use trademarks in their parodies and, when a parody is done well, this would generally be considered by the courts to be a fair use of a trademark. Like comparative advertising, however, parodies of trademarked products or services have led to lawsuits in the past.
Whenever you start trading off the trademark owner's "good will," using the trademark for your own commercial (and sometimes noncommercial) gain, you increase your risk of being sued. Commercial uses of any rights-protected material, when prior permission to use the material has not been granted, will increase your risk of being sued.
If your use of a trademark confuses a consumer into thinking you are connected with, endorsed by or sponsored by the trademark holder, this will also increase your risk of being sued. Trademark law centers on consumer confusion.
Because fair use of trademarks and copyrights is a defense and not permission, and fair use is decided by a court and not by an opinion voiced on a legal forum
, I suggest you run your website plans by an attorney in your area who is well-versed in copyright and trademark law.
This personal review can tell you better if your plans for use of the logos/trademarks on your website are legally risky and likely to spawn a lawsuit, and whether you would be smarter to contact the rights-holders prior to any use rather than to plunge ahead, relying on fair use (seeking permission, as I said before, is generally the smartest thing to do, regardless of the risk).
Good luck.
