Updated 3/12/2018

The short answer is: yes, you can apply to trademark a character that serves as either your company’s logo or its brand name. In order to secure a trademark for a character, you must use its name, image, or both to brand your products and services. For example, the “MICKEY MOUSE” name and image are both trademarks owned by Disney. Trademarking a character will prevent any competitors from utilizing the character’s name or image to advertise or sell competing products or services.

Does Fan Art Violate Copyrights?

If you register your unique character as a trademark, will it stop people from being able to produce fan art? In short, the answer is typically no. Most fan art falls under “fair use” but violates trademark/copyright protection if it moves from education or parody to a point where it causes confusion in commerce.

Jomo S. Thompson did a great piece explaining character copyrights and fan art, summing it up nicely:

Fan art could also potentially violate the Batman trademark. Protection in the trademark realm covers the right to claim you are the rightful source of a good. Trademarks are violated when a second party markets goods in such a way that the consuming public could believe they are buying from the first party. Trademarks usually protect words or phrases and company logos, but can also extend to packaging (called trade dress). Fan art shouldn’t ordinarily violate trademark if the artist makes no claim to be associated with DC and isn’t marketing his or her own “Batman” comic. –
Source

Protecting Your Character

Using a character to brand your products or services can be a very effective way to create brand recognition.  However, in order to attain trademark rights to the character, it must be unique and original. We always recommend having a thorough trademark search performed to ensure that there are not any similar registered trademarks in the United States Patent and Trademark Office database. Additionally, you should have a competent trademark attorney perform the search to make sure there are no other trademarks that could prevent you from securing a trademark on your character’s name or image.

 

Trademark attorney Xavier Morales

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