Typo alert: That should be "a long time" not "along time." -jjsemp

No worries and sorry aboutthe frustration. Fygomatic, allow me to rephrase -- 'They usually don't do that because...' Regardless, unless fan art has either lost them business or made money they should be entitled to part of, a counrt can only order a cease and desist. This can still cost court and even lawyer fees if contested, of course, so it's not a totally free thing. However, if there were either going to be going after any fan art, I doubt you'd see the fan-art covered envelopes in Wizard magazine every month emblazoned with Bats, Supes, Spidey, Spawn, Lady Death and Wolverine and published in another publication and not purchased from DC, Image, Marvel, Chaos!, Top Cow or whatnot because it's fan art.

Joey,

I haven't seen any results from your inquiries to Harley & BMW so I thought I'd contact them independently to see what they'd say. I still haven't heard back from BMW but Ms. Christine Anderson from Harley Davidson was kind enough to return my call today & informed me that... "all licensing agreements relating to our vehicles go through our legal department & contain non-disclosure clauses"

Additionally I checked through my old correspondence & pulled up the agreement I had signed with Coca-Cola back in 1998 when I wanted to use some trademarked Coke stuff in a series of posters I was contracted to do for some bike races here in Milwaukee & found the following... "11.10 PUBLIC ANNOUNCEMENTS. No party nor any of its agents or representatives will make any disclosure or public announcement concerning the transactions contemplated by this Agreement without the prior approval of the other parties; provided, however, that a party may make such disclosure or public announcement if it is advised by counsel that such disclosure or public announcement is required by law or regulation, so long as reasonable prior written notice of such disclosure is given to the other party and such party attempts in good faith to reach agreement regarding the content of such disclosure or public announcement."

Finally I did a bit of ratting around on the web looking for sample license agreements & found the following...

http://www.1000ventures.com/doc/legal/agr_sample_license_exclusive_byum.html

"7. Confidentiality. The parties agree to maintain discussions and proprietary information revealed pursuant to this agreement in confidence, to disclose them only to persons within their respective organizations having a need to know, and to furnish assurances to the other party that such persons understand this duty on confidentiality."

http://www.wipo.org/globalissues/databases/contracts/texts/html/licencegollin.html#confidential

"12. CONFIDENTIALITY. The Parties agree to treat as confidential any and all Confidential Information obtained from each other and to that end further agree that information disclosed pursuant to this Agreement relating to the Formulations, including efforts to commercialize the Formulations, shall be deemed Confidential Information. Notwithstanding the foregoing, confidential information may be disclosed to the extent required by any law or regulation of any governmental authority having jurisdiction over any of the Parties, with appropriate efforts made to maintain confidentiality. Both Parties shall maintain Confidential Information in confidence as set forth herein, for a period of five (5) years beyond termination or expiration of this Agreement..."

Let me know if your results are any different or if you ever hear back from BMW.

Well I, for one, am still a tad confused. Your opinion please _dodger. Is it ok for a registered trademark to be used in artwork or in a 3d model if it is part of the art, but not ok to use it if the manner in which it is displayed suggests that the author/owner of the art or model was the owner of the trademark? In other words, I can slap a BMW logo on a mesh, but I can't place it in the corner of a piece of artwork in a way that might be interpreted to indicate the art originated from BMW?

I think I've figured out where I was getting balled up. Dodger, perhaps you can tell me if I'm right or if I'm more confused than I thought. The name, or a catch phrase, or a symbol like the Nike swish that identifies the company on its products would come under be a trademark, and is only protected on established uses (IT'S products). But, for instance, someone could sell Nike... looks around desk Veterinary Ear Cleaning Solution (don't ask) and not have a problem. (Unless the planets are aligned oddly and Nike has already claimed Vet supplies as well.) On the other hand, the artwork in a logo, such as the Harley Davidson shield or eagle, would come under copyright protection, and putting that on anything would be a no-no. Which is why, for instance, the Harley at DAZ is kosher; it has the name, which for the sake of argument we're assuming had not been previously trademarked for 3D graphics models, but it does NOT have the shield or eagle (that I can see in the ads). Am I on the right track, or should I just go take some aspirin and stop hurting my head like this?

Cooler: "Let me know if your results are any different or if you ever hear back from BMW" I'll say it again, since it's clearly not getting through. The details of your or your broker's contract for the licensing is immaterial. But at the very least, DAZ should put a line about trademark ownership on the product page. That, Cooler, is the issue, because without it, it leaves the appearance that your broker has stolen it. Despite what Dodger may say, you're putting a Beemer crest on a for-sale item. That means it has to have been licensed, and I'm sorry but I don't know any company that just throws its TM out there without something accompanying that states TM ownership. I've been looking at TMd materials for the past couple of days, everything from a coffeetable photobook about Harleys to a vacation site that puts together packages for Disneyworld. Without exception, the ownership of the TM is acknowledged. But you guys don't. And that's just weird, period. Tell me, when you did those posters, did Coke say, "Hey, we don't need any TM ownership statement on there"? If they did, I would seriously be flabbergasted. More likely, at the very least, you would have attached a TM to the Coca-Cola name and put somewhere in tiny little type that the name and logotype are registered TMs of such-and-such a company and are used with permission. Don't tell me you didn't, because I work in this field. Now, in theory, you folks should have something in writing from the licensed companies that verifies use: not the details between the company and the broker, but a legal statement that says he (and subsequently, you) have the right to use the name and the brand. Again, this astounds me that you don't. And to flip it all off as "well, we don't discuss NDAs" is just throwing smoke. The agreement is unimportant. The acknowledgment is. And yes, if I hear anything further from BMW (Their response was to ask for the specific product URL), I'll let you know. For the record, I'm not out to "get" DAZ. I'd be questioning this if it was RDNA or the Commune or anyone else.

The internet and digital media are a nightmare for copyright holders. In the past, most people simply didn't have the resources or the inclination to make thousands of copies of material to distribute and the quality was obviously inferior. There were a few criminals into large scale operations but at least they could be focused on. Now, anyone can distribute countless perfect copies over the 'net and be extremely difficult to track down. At the same time, of course, there is a potential gold mine for companies via the new medium. For now, the whole thing is in a state of flux as the players try to determine a position. Unfortunately for consumers, a lot of these companies want to use their lobbying clout to pass legislation that really goes too far in many cases - no surprise there. Also no surprise that the only people who really make out on this are the lawyers.

This thread is getting buried pretty deep, so I doubt anyone will be reading it now. But for the record, BMW sent a response this morning that they've "turned the matter over to the appropriate department for assessment". They didn't sound impressed.

He's right, pick up any bottle or can of Coke and you'll see the words, "trademark" or the little R sign, under the words "Coke" or "Coca Cola". Also to be found on Memorex CD-R's (and my "Dilbert" calendar :) There's even a little trademark blurb on the back of the monitor opposite me talking about the Sun Microsystems logo... later jb

Fyrespiryt: You got it, though the copyrightability of an individual logo drawing can easily come into question depending on the complexity/originality/etc of the work in question. For instance, no one could successfully protect a copyright on, say, a big '+' in black on a white canvas (if they could, no one could use a period due to some 60s pop art that was done with a black dot on a white canvas, and the guy who did that would have one wealth estate form all the dots in web addresses). Additionally, many copyrights on the original art have expired. I'd guess that the Harley eagle hasn't but, for instance, the Yuengling Lager crest would have long since expired if it was ever eligible for copyright. Finally, one cannot copyright a typeface or a word in a specific typeface (you can copyright a font file, and you can trademark a name for a typeface, like Times New Roman, but the typeface itself is always fair game per legal precedent). Therefore, one can not protect a trademark that consists solely of letters by copyright. In other words, Microsoft could claim a copyright protection on the little Flying Windows logo as well as a trademark for computer software and peripherals, electronics goods, books and publications, but they couldn't stop someone from trademarking Microsoft Veterinary Ear Cleaning Solution using the same Verdana typeface they use. There have been cases where people have been stopped with a cease and desist and recall requirement outside of the product or service thus protected, but in all of those cases that I've seen the actual finding was one of fraud, and was caused because there was no other representation of trademark associated and the name in question was deliberately used to create the impression that, in fact, the other company had branched out and was responsible for the product thus considered fraudulent. THis would not happen in the case of DAZ products, as these products are explicitly either stated as DAZ Original Creations or Brokered For (whoever). In theory, if DAZ had listed the EU sportscar as 'Brokered for BMW' they could be in trouble for fraud and deliberate misrepresentation of the product. Of course, then it would be only suitable if a purchaser could reasonably argue that they expected some additional capability from the model that a reasonable individual would expect BMW to provide with such and that wasn't provided by the actual creator. Joey says: Despite what Dodger may say You know, I am really getting sick of this . I am quoting trademark law. This is not 'what I may say', this is what the USPTO says. Of course, I suppose your little arguments which seem to indicate that you firmly believe that your own inpressions somehow cnostitute law would look awfully silly is you had written 'Despite what the United States Patent and Trademark Office may say...' Why don't you try it that way? I dare you.

Dodger sputtles: "You know, I am really getting sick of this" Well, TTTT, I'm starting to think that maybe you should go back to wherever you got your certificate and ask for a refund, because almost everything you've been screeching around here sorta flies in the face of what I see in the real world. All your legal tapdancing just sorta fades when BMW asks for the URL of the product page in question, takes a look, and then sends me a followup message that indicates they're not real happy with DAZ at the moment and they're turning the matter over "for assessment", which kinda suggests that lawyers are gonna get involved. Gosh, maybe I should just direct them to you so they'll know, hey, it's all good. Would that work for you? So take your rants and stuff them, okay? Part of what you said may be true, but, based on what I see everywhere else in real life -- you know, the place where people are supposed to follow the rules when using other people's stuff for their own gain -- you're clearly missing the boat someplace else.

How else could you interpret this?

*** United States Code
o TITLE 15 - COMMERCE AND TRADE

• CHAPTER 22 - TRADEMARKS

SUBCHAPTER III - GENERAL PROVISIONS

Section 1125. False designations of origin, false descriptions, and dilution forbidden
**

"Any person who, on or in connection with any goods or services,...uses in commerce any word, term, name, symbol, or device, ... or any false designation of origin.... which - (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,.... origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act..."

[excerpted and condensed for clarity here, but you can read the whole US Fed. law at:]

FindLaw - US Codes

Sounds to me like you can't build a car, or even a model of a car, and identify it as a "Coca-Cola" much less a "BMW".

btw - the same act goes on to say in 1125(C):

"(4) The following shall not be actionable under this section:
...(B) Noncommercial use of a mark."

Further, with regard to the liabilities of hosting such a product,

In 15 USC 1114.(2)(B) "Remedies; infringement; innocent infringment by printers and publishers"
it implies that a third party like a newspaper (or website?) that carries advertising for an an infringing item can only be told to stop, and is not subject to payment of any damages.

The keyword there is probably "hosting", since the third party this time around is actually selling the item. It's not an innocent infringement like an ad in a newspaper.