Though many filmmakers believe that they need to clear every brand, trademark and logo in a film, they actually have the legal right to include trademarks in their films regardless of whether they have permission. In the Bloomberg BNA article “Using Trademarks in Film and TV,” Partner Lisa Callif discusses the misconceptions surrounding the use of trademarks onscreen, as well as the historical purpose of trademark law, the issue of trademark dilution and potential obstacles for filmmakers.
In order for a party to successfully claim trademark infringement, “the party must establish that the mark is valid and legally protectable, the mark is owned by the plaintiff, and use of the mark by the defendant is likely to create confusion among the relevant consumers,” Lisa wrote. “Typically, when trademarks are used in films, the trademark owner will prevail on the first two elements, but not on the third, making it unlikely that a claimant would prevail on a trademark infringement action.”
This does not mean filmmakers can use trademarks in any way they want – trade libel can occur if a product or service is depicted in a way that misrepresents the source or nature of the products and could have a negative impact on the value of the trademark. However, provided that filmmakers use trademarks and logos as they are intended to be used, there is no need for them to ask permission from the trademark’s owner.