DFerguson777
Member
I want to cast a Mountain Dew label pen for my wife. She is hooked on the Dew. If I wanted to sell it would that be "legal" since it is a trademark of a company?
-Denny- NC
-Denny- NC
Don't want to go to jail
- Thread starter DFerguson777
- Start date
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ed4copies
Local Chapter Manager
You should probably let your wife have it for free.
Personal details
can always be arranged for her to show her undying gratitude!!:biggrin::biggrin::biggrin:
Personal details
can always be arranged for her to show her undying gratitude!!:biggrin::biggrin::biggrin:
alphageek
Former Moderator
Ha!!!! Ed, I don't think thats what he meant!
I'm sure that selling them would be trouble.... I doubt that it would end you in jail, but I think there is 'lawsuit' type issues possible.
Dean
I'm sure that selling them would be trouble.... I doubt that it would end you in jail, but I think there is 'lawsuit' type issues possible.
Dean
Mark
Member
Send them an email and see what they say. I doubt they will just say yeah, go for it, but at least you make the contacts to pursue it further if you wish.
glycerine
Member
That's cool, I made a "Game Fuel" pen for a friend a while back. (that's a Mountain Dew flavor... or at least it WAS).
I've often wondered that same thing. I mean, you did pay for the can or bottle, so it seems that you should be able to do whatever you want to with it, right?
I've seen people selling soda can guitars made from various soda cans. You're not copying their logo or using their logo as your own. you're using a piece of a product that you purchased.
I've often wondered that same thing. I mean, you did pay for the can or bottle, so it seems that you should be able to do whatever you want to with it, right?
I've seen people selling soda can guitars made from various soda cans. You're not copying their logo or using their logo as your own. you're using a piece of a product that you purchased.
witz1976
Member
I am not a lawyer or anything, but I think if you are not marketing it for resell then there would be no infringement.
NewLondon88
Local Chapter Leader
It would still be an infringement, but the fact that it isn't being sold would
be taken into account when setting damages. It would not eliminate the
damages, it would just be taken into account.
Is it likely that they would sue over a gift? No.
But that's not the same as it being legal.
Using someone else's intellectual capital without their permission is illegal in the US. Pure and simple. Let your conscience and your willingness to take a risk be your guide.
Mountain Dew
What would they sue for???? Giving them free advertising??? How could they claim damages??They usually have to pay to get their name on/in other folks products. I think they would be happier than pigs in mud to get people to put their name on pens for free.Ha!!!! Ed, I don't think thats what he meant!
I'm sure that selling them would be trouble.... I doubt that it would end you in jail, but I think there is 'lawsuit' type issues possible.
Dean
Trade name use....
My bet is that this is a non issue. Companies want their product name in public view and in general pay to get it there. That's why Pepsico gives away signs to almost any organization or business that asks for one. I seriously doubt that they'd have a problem with people carrying around pens that showed off their product. There are other knockoffs that most likely bother them a lot more.
By the way .... they stole the name themselves from moonshine whixkey...remember the old country song.
We Call It That Good Old Mountain DEW
Down the road a ways from me there an old holler tree
where you lay down a dollar or two
Then you go round the bend and come back again
you find a jug of that good old mountain dew
My brother Bill runs a still on the hill
Where he turns out a gallon or two
And the buzzards in the sky get so drunk they can not fly
Just from sniffing that good old mountain dew.
Mountain Dew soft drink was first marketed in 1945 ... that song was around well before that.
My bet is that this is a non issue. Companies want their product name in public view and in general pay to get it there. That's why Pepsico gives away signs to almost any organization or business that asks for one. I seriously doubt that they'd have a problem with people carrying around pens that showed off their product. There are other knockoffs that most likely bother them a lot more.
By the way .... they stole the name themselves from moonshine whixkey...remember the old country song.
We Call It That Good Old Mountain DEW
Down the road a ways from me there an old holler tree
where you lay down a dollar or two
Then you go round the bend and come back again
you find a jug of that good old mountain dew
My brother Bill runs a still on the hill
Where he turns out a gallon or two
And the buzzards in the sky get so drunk they can not fly
Just from sniffing that good old mountain dew.
Mountain Dew soft drink was first marketed in 1945 ... that song was around well before that.
Damages
Damages must be proved, and I'm not sure you could convince a jury that Pepsico was damaged by someone using a piece of a Mountain Dew label in the body of a pen....
Damages must be proved, and I'm not sure you could convince a jury that Pepsico was damaged by someone using a piece of a Mountain Dew label in the body of a pen....
dl351
Member
I thought I read in another thread that using company logos in art is not illegal. I think it was in a thread about using things such as bottle caps to make pens. I could be wrong, though.
The driving force behind these type of lawsuits is protection of intellectual property. If companies don't act to protect their intellectual property, they run the risk of loosing their property rights. If they give too many people a pass on use of their property, even low volume folks like us, they run of being unable to protect themselves from some high volume guy coming along and trying to sell a lower cost version of their core product.
Similarly while you may choose to incorporate their trademark into some craft work in a tastefull way that would be good free marketing for them, someone else might use their trademark in a defamitory fashion. If they let you get away with it, then they risk loosing the right to go after defamitory use.
This leaves companies in the unfortunate position where they might look at your use and privately say "Cool!, That guy loves our producs and made a neat looking work of art using them." But publically have to attack to protect themselves from from someone else who may use the intellectual property with hostile intent.
SDB777
Member
Why don't you sell everything that isn't a MountainDew product on the pen? The MtnDew thing just happens to be a 'part' of the free stuff that went with the pen......
Scott (it's all it the wording with a lawyer) B
Scott (it's all it the wording with a lawyer) B
DurocShark
Member
The argument could be made that it's brand dilution since the owner of the mark could not control how it was utilized.
I used to create classic VW digital paintings. I was sued for brand dilution because the APPEARANCE of the vehicle diluted VW's brand. I spoke to 3 lawyers who all said the same thing: I had a 50/50 chance in court, but it would cost me $$$$$$$ to fight.
bruce119
Member
Now here's my thought (I didn't read every post)
I have sold label pens here is the way I go about. The customer gives you the label or can what ever. They bought the product soda, candy, beer what ever they can do what they wish with the wrapper or container. So instead of throwing it away they give it to me I make it into a pen I don't charge them for the wrapper they gave it to me. I charge them for the pen and labor.
That is the work around for that.
My thoughts now if you had one made and sitting on the table. That would have to be yours for display only and not for sale. Just to get the idea out there.
.
I have sold label pens here is the way I go about. The customer gives you the label or can what ever. They bought the product soda, candy, beer what ever they can do what they wish with the wrapper or container. So instead of throwing it away they give it to me I make it into a pen I don't charge them for the wrapper they gave it to me. I charge them for the pen and labor.
That is the work around for that.
My thoughts now if you had one made and sitting on the table. That would have to be yours for display only and not for sale
. Just to get the idea out there..
glycerine
Member
Crap, I'm in trouble!!! I just sold 1,000 mountain dew, coke, pepsi, sprite and root beer cans to the recycling plant for 5 cents each... will I be sued?!?!?!?
glycerine
Member
The difference here is that you "recreated" or "copied" their logo or vehicles. In this case, we are talking about using part of a product that has been bought (a soda can, bottle, or whatever it is).
Russianwolf
Member
Spoke with a lawyer friend of mine, his take was.
In the pop top pen you see multiple labels in the same piece. As such it can't be called a "Mountain Dew Pen", but a Soda cap pen. If all the tops were from the same logo, you could be in trouble.
In the pop top pen you see multiple labels in the same piece. As such it can't be called a "Mountain Dew Pen", but a Soda cap pen. If all the tops were from the same logo, you could be in trouble.
ldb2000
Member
The problem I see in this is if you get a gung ho lawyer looking to make brownie points with his boss or client and he files suit you are out the expense of trying to fight it or loose by default or settle which could also cost money ! No matter how you look at it you loose! Is it worth a chance ?
mbroberg
IAP Activities Manager, Emeritus
The lawyers get paid whether you are right or wrong. You pay the lawyers whether you are right or wrong. Some fights are just not worth fighting.
I believe you would be guilty of trademark infringement. It doesn't matter whether damage can be proved or not. If a company does not protect their trademarks they can become "public property" through common usage and then the company can't do anything to protect it. A couple of instances when that has happened was "Xerox" and "Kleenex" both of these term have become generic and have almost no trademark protection. If you profit from the use of the trademark or not really doesn't make any difference but profiting does create added reasons for the company to come after you. A couple of years ago a Ford auto club sold calenders as a funds raiser with cars showing the Ford emblem and the company forced the club to stop selling the calenders. Usually if you're worried enough to ask the question you're better off not doing it.
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Daniel
Member
Well, People make airplanes out of aluminum cans all the time. I have never had an issue.
The law is complicated. I have seen all sorts of stuff made with Brand name items. I have even seen shadow boxes put together with Coca Cola memorabilia. A trade mark Logo and that sort of thing is very complicated. If you print or reproduce it, paint it, or whatever you are in violation of laws. Sort of like only the owner of the logo can make the logo. But when they do make it and place it on a can, they then sell you that can. They also sold you the Logo that is on it. At that point you own that individual print of the logo and can do with it as you please. Now I think that if your Dew Pen got so popular that it might be produced in enough numbers that it could effect the reputation of Mountain Dew, They may have reason for recourse. I still think that if you where buying a can for every logo they could not do anything about it. they got their dime for the logo with the sale of the drink.
At worse I am wrong and in actual practice they would at most contact you to stop selling pens with their Logo on them. If you then ignore that they can and will take further action. They have full time Lawyers and need to keep them busy somehow.
But think about it. if it is illegal to make something from a soda can that you paid for. It would be illegal for me to use a piece of that can as a shim for the tail stock of my lathe. This simply is not the case. It would also be illegal for anything to be made with any companies packing materials. this is also not true.
The law is complicated. I have seen all sorts of stuff made with Brand name items. I have even seen shadow boxes put together with Coca Cola memorabilia. A trade mark Logo and that sort of thing is very complicated. If you print or reproduce it, paint it, or whatever you are in violation of laws. Sort of like only the owner of the logo can make the logo. But when they do make it and place it on a can, they then sell you that can. They also sold you the Logo that is on it. At that point you own that individual print of the logo and can do with it as you please. Now I think that if your Dew Pen got so popular that it might be produced in enough numbers that it could effect the reputation of Mountain Dew, They may have reason for recourse. I still think that if you where buying a can for every logo they could not do anything about it. they got their dime for the logo with the sale of the drink.
At worse I am wrong and in actual practice they would at most contact you to stop selling pens with their Logo on them. If you then ignore that they can and will take further action. They have full time Lawyers and need to keep them busy somehow.
But think about it. if it is illegal to make something from a soda can that you paid for. It would be illegal for me to use a piece of that can as a shim for the tail stock of my lathe. This simply is not the case. It would also be illegal for anything to be made with any companies packing materials. this is also not true.
Sberger
Member
Only a crappy looking pen would make the company mad. Make a nice pen, and they should be happy!
mbroberg
IAP Activities Manager, Emeritus
I must disagree with Daniel. Don't confuse the tangible item with the intellectual property that is contained on it. In my opinion, if, without permission, you use a logo, service mark, trademark, etc. to add, create, or increase the value or appeal of something you are leaving yourself open civilly. Those companies did not pay the big bucks to register their logos, service mark, trademark, etc. so that just anyone can put them on anything they want to. If you use a Coke can as a shim on your lathe then no one is going to see the logo contained on the can. The logo on the can is not being used to establish the character of, or add value to the lathe. That is much different than centering the logo front and center on a pen. Doing that establishes the character of the pen, is meant to appeal to people who like the product and are inclined to own the product based on the fact that the logo is prominently displayed. I believe the owner of the intellectual property would have a problem with that. Be safe. Ask permission.
Russianwolf
Member
Ummm. You are Wrong. :biggrin:
If you buy something and use it, you are fine.
If you buy something and use it in a way it wasn't intended, you are still fine as long as you don't hold them responsible if you hurt yourself. (cut the can and slice your finger on the edge).
If you buy something then resell it, you are fine. (Though MB may sue you and waste your time and possibly money)
If you buy something, modify it, and try to sell it using the original trademarked name, you may be in trouble.
Buy something with a logo and put it on something that the company didn't make and sell it in a way that could cause people to confuse it as being made by them, then you are just waiting for their lawyers to act.
So, using the piece of coke can as a shim on your lathe is okay. Using it on your lathe in such a way that it's readable and trying to sell it as a "Coca-Cola Lathe" and expect a letter at the least.
NewLondon88
Local Chapter Leader
I think you're confusing two issues or missing the point on one of them.
I've seen nothing in this discussion that makes a case for Fair Use, so the
first question "Is this legal?" would clearly be answered "no". The trademark
doesn't belong to you, you don't have the legal right to use it.
The second issue is "What would it cost me?" They may not be able to
recover anything from your 'profits', especially if there aren't any. But for
you to get to court and show no profit would mean you're probably already
in the hole for tens of thousands for their legal expenses plus your own.
They own the trademark and they must defend it or lose it. If you use it
without permission, you'd be found guilty and be liable for the legal costs.
I'm sure they don't use Legal Aid..
bobbyd50
Member
Stupid Idea??
Why don't you make a couple of "dew" pens and send them to the Pepsico corporate gift dept. Ask them if they were in the market for any nice executive gifts. Explain that you could incorporate any of their logos(Pepsi,Mountain Dew,Doritos etc.) into your executive pen and pencil sets. If you land the account then maybe a few could find thier way to the general public if you know what I mean.
Why don't you make a couple of "dew" pens and send them to the Pepsico corporate gift dept. Ask them if they were in the market for any nice executive gifts. Explain that you could incorporate any of their logos(Pepsi,Mountain Dew,Doritos etc.) into your executive pen and pencil sets. If you land the account then maybe a few could find thier way to the general public if you know what I mean.
wdcav1952
Activities Manager Emeritus
Just for fun, why don't you make a few pens using a Harley Davidson logo to sell? I'm sure no one would mind since you are actually advertising Harley products without charging Harley for the advertisement.
They still have to prove actual damages. I am sure that Pepsico does not get Coco Cola's permission to use Cokes name in their ads (and visa versa) which are always a little bit derogatory.
I might have to consult my nephew on this but I don't think, that once they sell me the can or bottle (and they do sell me the can - not just the contents) or whatever that they can exercise any control what-so-ever over how I choose to use or dispose of it. He was not talking about a reproduction but part of the actual product packaging...I don't think there is any infringement. I have seen all sorts of things made out of beer cans, and you can identify the brand. I think you could make the whole pen out of one of their cans and they could not do a thing...(other than in the USA anybody can sue anybody else for anything whether or not their case has any merit - usually with no consequences to themselves)
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ldb2000
Member
Smitty , before you go betting the farm on this one read this thread http://www.penturners.org/forum/showthread.php?t=60517&highlight=mont+blanc and the linked thread in post #13 . A company can retain control of the use of their name even after you buy their product , and even if they loose you can still end up paying thousands in lawyers fees so you loose anyway .
Nope...if they sue me they must prove that they suffered damages. They have to show that not only did I misuse their property but that they were in fact, damaged by that use.
Second, as long as what I use in my craft is an actual can or something that I purchased (and not a reproduction of their logo) they can't sue at all because they sold it to me and it is mine to use as I see fit. They can't prevent me from using their can for some other purpose than holding soda pop. I've seen soft drink and beer cans made into all sorts of things and sold at craft shows or yard sales, and I've never heard of anyone being sued over it or even being sent a letter asking them to stop (that is usually the first thing that happens), so what is different about pens?
http://www.bitlaw.com/index.html Lets see if this will help or hinder this thread
Not the same issue, Mont Blanc is a pen making company suing for someone making counterfeit copies of their pens. That's a whole nuther story... I never said abody could sell soda in cans with Mountain Dew's name on them and claim it was Mountain Dew in the cans. That is theft. But, having said that, trade mark cases are lost often sometimes because the trade mark, even though properly obtained, was predated or tried to take a common usage idea and make it exclusive..you can't do that but the government will let you try figuring it will get sorted out in court.
Happens in patent infringement cases all the time, I've seen estimates that at least 50% of the patients issued each year won't stand up if challenged, they are not challenged because all the competing companies have cross licensing agreements.
ldb2000
Member
you should reread the complaint , they were not suing for making counterfeit pens , they were suing for modifying a privately owned MB pen by putting an overlay on it and in the other case for making customer requested repairs on a pen owned by a person , clearly no longer owned by MB in any way but the name and trademarks on the pen . They are stating that they still own the name and logo and even the triple center band after purchase and that the customers had no right to modify or repair said pens without MB's permission .
Oh and they filed these suits without first giving any cease and desist notice .
Oh and they filed these suits without first giving any cease and desist notice .
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Interesting discussion
This has been a fun discussion but it's really moot. Until someone actually gets sued there is no right answer to any legal question. A good lawyer can usually argue very persuasively on either side of an issue (and I have read some very persuasive arguments backed by what seemed like pretty good precedents that were dismissed out of had by a judge). The one case that was cited didn't really involve just using a trade mark it involved counterfeiting (and I might sue myself in that case)which using part of an actual can or label wouldn't. But it was fun.
This has been a fun discussion but it's really moot. Until someone actually gets sued there is no right answer to any legal question. A good lawyer can usually argue very persuasively on either side of an issue (and I have read some very persuasive arguments backed by what seemed like pretty good precedents that were dismissed out of had by a judge). The one case that was cited didn't really involve just using a trade mark it involved counterfeiting (and I might sue myself in that case)which using part of an actual can or label wouldn't. But it was fun.
Rum Pig
Member
I agree that they would not care as it is free advertising but I would still make contact with them you may even get something from them.
Now that i think about it if you made one and sent them the pen or some photos they may eve ask you to make some for them. You will never know until you give it a go
Good luck
Now that i think about it if you made one and sent them the pen or some photos they may eve ask you to make some for them. You will never know until you give it a go
Good luck
Don't make any assumptions about them liking free advertising - of proving they lost money before they sue you. They would be perfectly happy to spend thousands to make an example of you even if they got n money back from suing you.
There are concepts of product trademark dilution that only a qualified lawyer can answer. You also may get a take down order for infringement if you have a web site with their name.
There are concepts of product trademark dilution that only a qualified lawyer can answer. You also may get a take down order for infringement if you have a web site with their name.
NewLondon88
Local Chapter Leader
This is incorrect.
They only need to prove damages if they are seeking additional monetary
compensation. But if they can show that you are trading on the trademark
owner's reputation (likely, since there is no other reason for using their
logo) then damages could be awarded at the judge's discretion.
They wouldn't prevent you from using the can. They would sue you for
using the logo.
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ToddMR
Member
I just don't see why you don't just make the pen and not advertise it. I mean if it's your own personal use, what's the harm? Now if you were to start selling them without their agreement I can see it. But I honestly think all this is getting out of context. I remember you were simply making one to make it for personal use, ie your wife. If that's all the further you go, then imo, who cares. Just don't post pictures etc.