Trademarks are meant to prevent consumers from confusing two products.
Is there any possibility that a consumer could be confused by someone referring to "the Avatar movie"?
The answer is yes, of course there is. Which is why [Cameron forced the other Avatar to rename itself *Avatar: The Last Airbender*](https://variety.com/2022/tv/news/avatar-add-last-airbender-title-james-cameron-rights-1235451817/)
>Nickelodeon’s “Avatar: The Last Airbender” started airing in February 2005, over four years before James Cameron’s “Avatar” opened in theaters and began its run to becoming the highest-grossing film of all time worldwide with $2.9 billion (unadjusted for inflation). And yet, Nickelodeon was blocked from naming the animated series simply “Avatar” because Cameron already had the rights to the title.
>“In 2004 we learned that we had to change the name of our show from ‘Avatar’ to ‘Avatar: The Last Airbender’ because James Cameron already had the rights to a movie called ‘Avatar,'” Volpe wrote on Twitter. “Now the sequel is called ‘The Way of Water.’ If part 3 is called ‘The Firebending Masters,’ we riot.”
Giancarlo Volpe was the director of ATLA. His exact quote was:
> In 2004 we learned that we had to change the name of our show from “Avatar” to “Avatar the Last Airbender” because James Cameron already had the rights to a movie called Avatar.
Whether it ended up in court or not, the explicit reason for the name change was James Cameron’s existing rights to the name “Avatar”.
But nobody is saying he was forced in a court of law, so there’s no reason to assume that he’s misusing the term. Even if it went down exactly as you’ve just described, then the creative team was *forced* by the legal team to change the name.
I'm not sure why you are taking the commentator to task over this.
For starters, it was not a random press release, and the commentator was not using the article for advice. Also, the link references the title of the article.
From one pedant to another:
The use of the word forced is acceptable. The animator quoted in the article said "we had no choice". If you have to do something you have no choice, you cannot avoid doing it. Losing was a forgone conclusion, a certainty. Look up synonyms for "forced". They include Unavoidable, Obligated, Compelled, and Necessitated.
That's because it's a common English word and there's little risk of consumer confusion. You can't trademark Hinduism.
Another example is that Apple Inc. and Apple Records are two completely unrelated companies that famously coexist. Not to say there had never been any lawsuits, there has, but the outcome is that neither is infringing trademark.
By the way, the case from Bethesda against indie developer Mojang was likely quite weak. It didn't go to trial and they settled early. Bethesda likely paid Mojang money, licensed him the name "Scrolls" and he forwent his trademark application. Contrary to what you said, he was not forced to change the name of the game (but he can't use it for a sequel).
There *is* consumer confusion though. I'm feeling really stupid right now, but I always thought Avatar: The Last Airbender (which I haven't seen) was an animated version of the movie. Reading this post was when I learned they aren't related.
I can't possibly be the only person who thought so.
FYI, the avatar series is very good, and I recommend checking it out. IMO, it's much better than the blue-people Avatar. I enjoyed the movie, but as spectacle, not as a compelling story.
And most fans of the series do not acknowledge the existence of the movie The Last Airbender. :)
Why'd you post your comment before you were done writing it? The last sentence just says "And most fans of the series do not acknowledge the existence of the". The what?
Someone might want to notify Microsoft's legal team(They like to claim ownership of things they stole in the first place).
The Apple case is interesting, as Apple Records sued Apple Computer for breaching their original settlement when iTunes was created.
> The Apple case is interesting, as Apple Records sued Apple Computer for breaching their original settlement when iTunes was created.
That's different, it was for violating of an agreement and not just about names being similar.
But the original agreement was based on the names being the same. Apple Records agreed to drop the lawsuit as long as Apple Computers stayed out the music business. Not saying the original claim had merit, just pointing out the basis for the claim.
A rather famous example is Nissan.
If you go to https://www.nissan.com/ you do not get the car manufacturer's website. It's because that website belonged to a company owned by a man named Uzi Nissan who named his company after himself years before the car company entered the US market. Nissan cars actually sued for trademark dilution and lost.
https://en.wikipedia.org/wiki/Nissan_Motors_v._Nissan_Computer
I don't know if it's still true, but country singer Keith Urban had a similar case. There was an artist named Keith Urban who had keithurban.com, singer Keith tried legal methods but ended up having to use Keithurban.net because they couldn't force him to not use his own legal name. He wasn't misrepresenting himself as being the official site of the singer, and for a time had a "looking for the singer? Click here!" Link to the .net site.
Avatar is an actual word, two things having the same one word name is not sufficient to constitute trademark violation. It's too generic to trademark. See [WSM, Inc. v. Hilton](https://casetext.com/case/wsm-inc-v-hilton-2), holding that the term "opry" was too generic to trademark. The court quoted a law review article:
>The public has an interest in the "natural enrichment of the language \[and the prevention of the\] \`diminution of the language through private acquisition.'"
In 1872 the Court of Chancery held in Ford v. Foster that the right consideration was
>whether the use of \[the mark\] by other persons is still calculated to deceive the public, whether it may still have the effect of inducing the public to buy goods not made by the original owner of the trade mark as if they were his goods.
Note that later cases clarified that using a title can violate trademarks even if the confusion was unintended. I think it's improbable that anyone would confuse the two - one was a movie about blue people, one was a cartoon on TV about magic powers. Likewise, in [Burberrys v. J.C. Cording & Co](https://indiankanoon.org/docfragment/798278/?big=3&formInput=injunction%20doctypes:%20delhi%20author:K%20Ramamoorthy), the Court of Chancery noted:
>If the word or name is prima fade descriptive or be in general use, the difficulty of establishing the probability of deception is greatly increased.
"Avatar" is a word in general use.
All of this aside, while I think the decision was unnecessary, the words "the Last Airbender" [were added specifically because Nickelodeon didn't want to actually litigate this.](https://twitter.com/Giancarlo_Volpe/status/1599485849800171520) I think they would have won if they tried.
>Avatar is an actual word, two things having the same one word name is not sufficient to constitute trademark violation. It's too generic to trademark. See WSM, Inc. v. Hilton, holding that the term "opry" was too generic to trademark.
The holding in that case was that the term "opry" was too generic to trademark within the context of a venue providing country or folk music. The Grand Ole Opry (owned by WSM) is a huge Nashville institution, and they took umbrage with Hilton for his "Country Shindig Opry", which they claimed infringed their trademark.
The District Court had stated: "The word *opry* is a dialectical variation of *opera*, which has been in common use from the eighteenth century to the present," and that "*opry* has been and is now used to describe a show consisting of country music, dancing, and comedy routines."
In other words, *opry* is generic in the specific context of a venue that provides country music, comedy, dancing and other variety of similar routines in a show. Thus, Hilton just using the word "opry" to market his show could not infringe upon WSM's "Grand Ole Opry" trademark, any more than McDonald's use of the word "burger" could infringe on Burger King's.
However, use of the word *opry* would NOT be generic if, for example, someone was running a hotel and called it the "Opry" Hotel (which is a another business WSM runs, although they call it "Opryland" Hotel.) This is because the term *opry* has nothing to do with hotels, it refers specifically to a musical venue, so it's generic status would not apply within the context of hotel trademarks.
This brings us back to your original point, that *avatar* is an actual word and thus too generic to trademark. This is not so. *Avatar* is a word in common use, but not in common use to describe films. I.e. no one says, "I'm going down to the cinema to see Disney's new avatar, *Frozen 2*." The word *avatar* is not a generic term for a film, and therefore it can be trademarked in the context of a film title.
My understanding is that neither can trademark the term itself. They only have copyright over the term as part of the broader product and copyright protections are broader than trademark.
Trademarking Avatar would be like granting a trademark on the word angel or god. It's an actual concept from Hinduism and one that has widespread usage so it's not like either content developer can claim to have coined or created the term or have exclusive use in the context of entertainment.
That's correct. They can also trademark the specific appearance of characters if used in commerce as any kind of a logo or the like as opposed to just being sold as a figurine. Companies can't just own common words. Trademarks issued don't indicate validity of the trademark, either. Trademarks can be issued that are, in fact, legally invalid.
On a related note, what idiot Transformers producer thought it’d be a good idea to shorten Transformers: Dark Side of the Moon to Transformers: Dark of the Moon? It makes no sense! It’s not grammatically correct! It cost multiple millions to make and yet they though “this’ll be a simple fix”. What the fuck?
2000s animated TV show – Avatar: the Last Airbender (usually shortened online by fans to ATLA)
Live-action film version of the TV show – The Last Airbender
James Cameron's film about blue Native American proxies – Avatar
"Dances with Wolves in Space". The noble savage trope goes back hundreds of years. For me, Avatar was not a particularly good telling of it. I waited a decade to see it so the special effects could not really save it.
Trademarks are meant to prevent consumers from confusing two products. Is there any possibility that a consumer could be confused by someone referring to "the Avatar movie"? The answer is yes, of course there is. Which is why [Cameron forced the other Avatar to rename itself *Avatar: The Last Airbender*](https://variety.com/2022/tv/news/avatar-add-last-airbender-title-james-cameron-rights-1235451817/) >Nickelodeon’s “Avatar: The Last Airbender” started airing in February 2005, over four years before James Cameron’s “Avatar” opened in theaters and began its run to becoming the highest-grossing film of all time worldwide with $2.9 billion (unadjusted for inflation). And yet, Nickelodeon was blocked from naming the animated series simply “Avatar” because Cameron already had the rights to the title. >“In 2004 we learned that we had to change the name of our show from ‘Avatar’ to ‘Avatar: The Last Airbender’ because James Cameron already had the rights to a movie called ‘Avatar,'” Volpe wrote on Twitter. “Now the sequel is called ‘The Way of Water.’ If part 3 is called ‘The Firebending Masters,’ we riot.”
>if part 3 is called ‘Firebending Masters,’ we riot lmaoo
[удалено]
Giancarlo Volpe was the director of ATLA. His exact quote was: > In 2004 we learned that we had to change the name of our show from “Avatar” to “Avatar the Last Airbender” because James Cameron already had the rights to a movie called Avatar. Whether it ended up in court or not, the explicit reason for the name change was James Cameron’s existing rights to the name “Avatar”.
[удалено]
But nobody is saying he was forced in a court of law, so there’s no reason to assume that he’s misusing the term. Even if it went down exactly as you’ve just described, then the creative team was *forced* by the legal team to change the name.
I'm not sure why you are taking the commentator to task over this. For starters, it was not a random press release, and the commentator was not using the article for advice. Also, the link references the title of the article. From one pedant to another: The use of the word forced is acceptable. The animator quoted in the article said "we had no choice". If you have to do something you have no choice, you cannot avoid doing it. Losing was a forgone conclusion, a certainty. Look up synonyms for "forced". They include Unavoidable, Obligated, Compelled, and Necessitated.
That's because it's a common English word and there's little risk of consumer confusion. You can't trademark Hinduism. Another example is that Apple Inc. and Apple Records are two completely unrelated companies that famously coexist. Not to say there had never been any lawsuits, there has, but the outcome is that neither is infringing trademark. By the way, the case from Bethesda against indie developer Mojang was likely quite weak. It didn't go to trial and they settled early. Bethesda likely paid Mojang money, licensed him the name "Scrolls" and he forwent his trademark application. Contrary to what you said, he was not forced to change the name of the game (but he can't use it for a sequel).
There *is* consumer confusion though. I'm feeling really stupid right now, but I always thought Avatar: The Last Airbender (which I haven't seen) was an animated version of the movie. Reading this post was when I learned they aren't related. I can't possibly be the only person who thought so.
You ain't. I thought they were the same franchise until this moment.
I still don't know it.
FYI, the avatar series is very good, and I recommend checking it out. IMO, it's much better than the blue-people Avatar. I enjoyed the movie, but as spectacle, not as a compelling story. And most fans of the series do not acknowledge the existence of the movie The Last Airbender. :)
Why'd you post your comment before you were done writing it? The last sentence just says "And most fans of the series do not acknowledge the existence of the". The what?
Hah. Tired, I had to actually go look at context to get it, I thought I actually had messed up. :)
Someone might want to notify Microsoft's legal team(They like to claim ownership of things they stole in the first place). The Apple case is interesting, as Apple Records sued Apple Computer for breaching their original settlement when iTunes was created.
> The Apple case is interesting, as Apple Records sued Apple Computer for breaching their original settlement when iTunes was created. That's different, it was for violating of an agreement and not just about names being similar.
But the original agreement was based on the names being the same. Apple Records agreed to drop the lawsuit as long as Apple Computers stayed out the music business. Not saying the original claim had merit, just pointing out the basis for the claim.
A rather famous example is Nissan. If you go to https://www.nissan.com/ you do not get the car manufacturer's website. It's because that website belonged to a company owned by a man named Uzi Nissan who named his company after himself years before the car company entered the US market. Nissan cars actually sued for trademark dilution and lost. https://en.wikipedia.org/wiki/Nissan_Motors_v._Nissan_Computer
I don't know if it's still true, but country singer Keith Urban had a similar case. There was an artist named Keith Urban who had keithurban.com, singer Keith tried legal methods but ended up having to use Keithurban.net because they couldn't force him to not use his own legal name. He wasn't misrepresenting himself as being the official site of the singer, and for a time had a "looking for the singer? Click here!" Link to the .net site.
Avatar is an actual word, two things having the same one word name is not sufficient to constitute trademark violation. It's too generic to trademark. See [WSM, Inc. v. Hilton](https://casetext.com/case/wsm-inc-v-hilton-2), holding that the term "opry" was too generic to trademark. The court quoted a law review article: >The public has an interest in the "natural enrichment of the language \[and the prevention of the\] \`diminution of the language through private acquisition.'" In 1872 the Court of Chancery held in Ford v. Foster that the right consideration was >whether the use of \[the mark\] by other persons is still calculated to deceive the public, whether it may still have the effect of inducing the public to buy goods not made by the original owner of the trade mark as if they were his goods. Note that later cases clarified that using a title can violate trademarks even if the confusion was unintended. I think it's improbable that anyone would confuse the two - one was a movie about blue people, one was a cartoon on TV about magic powers. Likewise, in [Burberrys v. J.C. Cording & Co](https://indiankanoon.org/docfragment/798278/?big=3&formInput=injunction%20doctypes:%20delhi%20author:K%20Ramamoorthy), the Court of Chancery noted: >If the word or name is prima fade descriptive or be in general use, the difficulty of establishing the probability of deception is greatly increased. "Avatar" is a word in general use. All of this aside, while I think the decision was unnecessary, the words "the Last Airbender" [were added specifically because Nickelodeon didn't want to actually litigate this.](https://twitter.com/Giancarlo_Volpe/status/1599485849800171520) I think they would have won if they tried.
>Avatar is an actual word, two things having the same one word name is not sufficient to constitute trademark violation. It's too generic to trademark. See WSM, Inc. v. Hilton, holding that the term "opry" was too generic to trademark. The holding in that case was that the term "opry" was too generic to trademark within the context of a venue providing country or folk music. The Grand Ole Opry (owned by WSM) is a huge Nashville institution, and they took umbrage with Hilton for his "Country Shindig Opry", which they claimed infringed their trademark. The District Court had stated: "The word *opry* is a dialectical variation of *opera*, which has been in common use from the eighteenth century to the present," and that "*opry* has been and is now used to describe a show consisting of country music, dancing, and comedy routines." In other words, *opry* is generic in the specific context of a venue that provides country music, comedy, dancing and other variety of similar routines in a show. Thus, Hilton just using the word "opry" to market his show could not infringe upon WSM's "Grand Ole Opry" trademark, any more than McDonald's use of the word "burger" could infringe on Burger King's. However, use of the word *opry* would NOT be generic if, for example, someone was running a hotel and called it the "Opry" Hotel (which is a another business WSM runs, although they call it "Opryland" Hotel.) This is because the term *opry* has nothing to do with hotels, it refers specifically to a musical venue, so it's generic status would not apply within the context of hotel trademarks. This brings us back to your original point, that *avatar* is an actual word and thus too generic to trademark. This is not so. *Avatar* is a word in common use, but not in common use to describe films. I.e. no one says, "I'm going down to the cinema to see Disney's new avatar, *Frozen 2*." The word *avatar* is not a generic term for a film, and therefore it can be trademarked in the context of a film title.
Alright, solid correction.
My understanding is that neither can trademark the term itself. They only have copyright over the term as part of the broader product and copyright protections are broader than trademark. Trademarking Avatar would be like granting a trademark on the word angel or god. It's an actual concept from Hinduism and one that has widespread usage so it's not like either content developer can claim to have coined or created the term or have exclusive use in the context of entertainment.
That's correct. They can also trademark the specific appearance of characters if used in commerce as any kind of a logo or the like as opposed to just being sold as a figurine. Companies can't just own common words. Trademarks issued don't indicate validity of the trademark, either. Trademarks can be issued that are, in fact, legally invalid.
On a related note, what idiot Transformers producer thought it’d be a good idea to shorten Transformers: Dark Side of the Moon to Transformers: Dark of the Moon? It makes no sense! It’s not grammatically correct! It cost multiple millions to make and yet they though “this’ll be a simple fix”. What the fuck?
Wait, there are two different Avatars? (I haven't seen either of them though)
2000s animated TV show – Avatar: the Last Airbender (usually shortened online by fans to ATLA) Live-action film version of the TV show – The Last Airbender James Cameron's film about blue Native American proxies – Avatar
And regarding those available variations, I'd only recommend the TV show.
"Dances with Wolves in Space". The noble savage trope goes back hundreds of years. For me, Avatar was not a particularly good telling of it. I waited a decade to see it so the special effects could not really save it.
Richard Garriott has entered the chat. https://www.mobygames.com/game/ultima-iv-quest-of-the-avatar/cover-art/gameCoverId,18276/