Trademark, Copyright, and Your Haunted Farm
Jonathan Bailey is a copyright and plagiarism consultant and has been helping small to medium sized creators protect their work for over 10 years. Johnathan has written this amazing content for Haunted Farms of America, and we are pleased to have the opportunity to share it with you. When building a haunted attraction, intellectual property issues often don’t get a great deal of attention. However, these rules are absolutely crucial for haunts not only to avoid being sued or shut down, but also to protect their own brand and other creations.
© Jonathan Bailey, written for Haunted Farms of America
Trademark and Your Haunted Farm"For haunted farms, trademark is an especially important area to focus on. Haunted farms are in a unique position that, if they infringe a trademark, the infringement could literally be planted in the earth, meaning a cease and desist letter could close them for the season."
The Basics of Trademark
The aim of trademark law is to prevent confusion in the marketplace by letting businesses easily distinguish themselves and their products from their competitors. It does this by offering protection to any name, phrase, symbol or logo, that is used to identify either a merchant or their products and services.
When one business uses a mark in commerce that creates a likelihood of confusion, it’s considered to be trademark infringement. In that situation, the holder of the legitimate trademark can file a lawsuit and seek damages for the infringement.
However, not all trademarks are created equal. The more unique a trademark is the more protection it has. Fanciful marks, which have no meaning outside of the business or product, have stronger protection than descriptive ones that merely describe the product or service.
For example, a haunted farm in the town of Millwood named “Millwood Scary Farm” is merely descriptive and just details the location and what the attraction is. However, if they renamed it “Crow’s Eye Farm” or something more fanciful, their protection would be stronger.
But when it comes to trademark, the most common question haunted attraction owners have is not how to better protect their name, but rather, if they can use trademarked characters in their haunt.
What’s in a Name
The same as the movie studios hold the trademark in the names, characters and film titles they create, you hold them in any that you create.
As we discussed above, creating fanciful trademarks that distinguish your product, not only helps make your haunt unique, but also means you can force others to stop using similar marks if they try to in your area.
To be clear, two haunts can have the same name, especially if the name is not extremely fanciful and the two haunts are not in the same market. However, the more unique the mark and the closer the two haunts, the more likely there’s confusion and trademark infringement.
If you’re truly interested in protecting your name and your brand, you may wish to seek the help of an attorney to register your mark with the U.S. Patent and Trademark Office. Though it’s not necessary to own a trademark and defend it, registration provides a series of benefits including a legal presumption of ownership of the mark.
All in all, the process may be worthwhile, especially if you’re looking at going to court over trademark infringement.
Be Careful With Characters
One of the more common issues haunted attractions run into with trademark is the fact that popular horror movie characters, such as Freddy, Jason and Michael Myers, are all protected by trademark (in addition to copyright) as well as the titles of the movies they starred in.
This means that using characters, their names and their film titles in any kind of commerce is risky, especially if there’s any risk for confusion. If the rightsholders become aware of the use and have any reason to believe that there might be confusion with regards to its use, they can either send a cease and desist letter or even file a lawsuit.
However, for a haunted farm, even a cease and desist letter could be devastating. If a corn maze used a character or trademarked title as part of its design, it may be impossible to undo in time to open, forcing closure for all or part of the season.
This can be especially problematic when haunts infringe trademarks in their promotion. Advertising an event as a “Freddy Maze” not only greatly increases the chances of a lawsuit, but also makes the infringement that much more severe.
While such battles are still rare, the safest thing to do is to not use any characters, names, or titles trademarked by others. Instead, stick to original creations, meaning characters and stories you create, or ones you have an explicit license to use, such as the designs offered by the Haunted Farms of America.
You always own what you create and if you use your design or characters, not only are you safe from legal threats, but you have the ability to protect them.
Trademarks were developed to protect businesses and consumers alike. By making it clear what the source of a good or service is, businesses can build their own brands and customers can be confident they are buying from who they think they are.
But while trademarks can certainly protect you and your business, they can also bite you if you misuse another’s marks. It’s best to be extremely careful when using the marks of others in commerce as any confusion could be grounds for legal action.
Your best bet is to stick to your creations, not just to avoid litigation, but to have original works that you can protect and exploit exclusively.
In the end, with trademarks, it’s just better to be original.