Trick-or-Treat: Trademark Infringement or Harmless Halloween Fun? Fish Tank: Newsletter Volume 22, Issue 22

Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 22, Issue 22

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Trick-or-Treat: Trademark Infringement or Harmless Halloween Fun?

By Linda M. Callaghan

With the abundant commercialization of the holidays, Halloween has morphed into a month-long celebration allowing trick-or-treaters to attend numerous events to don their costumes.  Adults and children alike spend hours perusing the many pop-up Halloween stores and supermarket aisles searching for the “perfect” costume.  Consumers have grown accustomed to seeing knock-off costumes based on popular celebrities and movie or book characters.  Some of these knock-off costumes, while attempting to skirt intellectual property violations, are providing unexpected humor for shoppers. 

Many popular fictional characters may be protected by various forms of intellectual property law. For example, the name of a fictional character from a book or a movie may be a registered trademark, such as DISNEY ALADDIN.

Presumably, to avoid paying licensing fees that would cut into profits, costume makers have taken to the use of descriptive wording to sell costumes.  For instance, the below costume packaging advertises a red and white striped shirt and winter hat with big, round, black rimmed glasses as “Where’s the Stripey Dude?”  The costume is clearly meant to be Waldo from the WHERE’S WALDO? series of books and movies.  The costume maker is trying to avoid a trademark infringement accusation by cleverly describing the costume without actually using the trademark itself on the packaging.  Of course, the trademark owner may still bring a lawsuit, and the question will be whether consumers are likely to be confused or believe that Where’s the Stripey Dude? is somehow related to WHERE’S WALDO? or Viacom (the WHERE’S WALDO? trademark owner).  Given the lengths that the makers of Where’s the Stripey Dude? have gone to avoid using the WHERE’S WALDO? trademark, it is questionable whether anyone but the most naïve consumer would believe they are purchasing a genuine WHERE’S WALDO? costume. Moreover, is it questionable whether Viacom has any interest in policing potential infringement, since it allowed its WHERE’S WALDO? trademark applications and registrations to lapse.

However, the below knock-off Aladdin costume advertised as “A-Lad-In a Costume,” while quite amusing, seems to be begging for a lawsuit. The use of “A-Lad-In” is much closer to “Aladdin” in pronunciation and appearance, which are factors to consider when assessing whether there is likely to be any consumer confusion, and thus, any trademark infringement.

In addition to trademark law, other intellectual property law aspects may apply, like copyright law and right of publicity. For example, US copyright law has protected certain non-utilitarian features of costumes, like the ghost face mask from the Scream film franchise. Also, the right of publicity protects the commercial use of one’s persona. Selling unauthorized costumes featuring the likeness of some celebrities may result in a lawsuit, like the now-famous lawsuit over Albert Einstein dress-up kits in 2010.

In any event, these creative knock-off costumes are providing some comic relief for customers while searching for Halloween costumes.  We suggest dressing up as anything except an intellectual property infringer!

Have a safe and happy Halloween! For some online trick-or-treating, stop by our swag page and help yourself to some goodies.

Linda is a Partner at Fishman Stewart, specializing in intellectual property law. Linda focuses mainly on trademark and copyright law, including foreign and domestic prosecution and litigation, as well as agreements and assignments. Check out her full bio here.

Published October 27, 2022

Fishman Stewart partner Michael Fishman named to 2022 class of Leaders in the Law by Michigan Lawyers Weekly

Troy, Mich.—October 13, 2022— Intellectual property law firm Fishman Stewart PLLC is pleased to announce that Michael Fishman, a founding firm partner, has been included in the 2022 class of Leaders in the Law by Michigan Lawyers Weekly.

Read the full press release here to learn more about Michael Fishman and Michigan Lawyers Weekly.