Using state tags in designs and general copyright questions

[Nostromo]

I’ve seen clothing with all sorts of official tags, permits and the like used on them, how would a company use these unless they were the preferred provider of the state or local municipality that created them unless they were altered to constitute a new and original work?

What if one wanted to use a license plate and specific wording on clothing? The state owns the specific tag (either in or out of circulation) does one have to change it so it does not look like a copy?

Lastly, if one wanted to use a design and modify it so as not be in conflict with ownership is there a test for how different one item has to be from the other? After all there are common icons and text fonts that one could argue are in the public domain?

There was a clear cut case of misuse in a NY Times article last month about one company who is licensed to sell clothing and jewelry of the various logos for the MTA/New York City Subway system. It covered how there are may other companies that copied the designs outright, which the MTA has notified with a cease and desist letter, this even thought the city has hundreds of designs many of which have not be copyrighted due to costs and time.

Thanks

[jonrichd]

I think trademarks work a bit differently than copyrights. As you point out, with a copyright, it's a matter of deciding if the new item is an original work, separate from that of the original copyright holder. With trademarks, the question is whether the use of the mark would confuse the average person into thinking that the new work belonged to the original trademark holder. And, that, in the end, probably depends on how agressive the holder of the original mark is in enforcing its rights.

For graphic designs, I would think it would be difficult to alter a design enough to not confuse someone into thinking it was part of the original design without losing the connection between the original and what you are proposing to create.

Certain companies blatantly take a trademark holders's design, hoping that they will never be caught, or won't be big enough fish to warrant pursuing. Some organizations (think McD and the Olympics) are VERY agressive in enforcing their rights.

So it's probably your responsibility to determine if in fact the mark you are proposing to use is indeed trademarked, and then to find out if there is a licensing program that will allow you to use the mark.

However, I'm not a lawyer, and don't play one on TV. If you're really serious about your project, you might want to contact a patent and trademark attorney who can give you better advice.

[rogerd]

That's definitely a trademark issue, and I'd say a situation where a city has not asserted a trademark in the past and has never registered anything is one of those legal areas that help keep the legal profession healthy.

All things being equal, it's far better to do something completely original. If you mimic an existing design, you risk legal action even if you think your usage is sufficiently diffent to prevail in court. For small businesses, there is no such thing as "winning" when defending against a trademark suit. Even if the small business prevails in court, they will have suffered the debilitation of high legal costs and massive use of management time.