It's important to remember what the purpose of trademark law is. Trademark law is part of the body of law that works to prevent unfair competition among businesses.
Trademarks are symbols of the identity and reputation of the source of a product or service—part of the goodwill that a business may have worked long and hard to build up over time. People become familiar with trademarks to the extent that they come to have certain expectations about quality or value when they see a particular trademark. Consumers use trademarks to make purchasing decisions. Hence, trademarks help prevent confusion in the marketplace.
Copyright aims to prevent copying. By contrast, trademark aims to prevent confusion. The thrust of the law is totally different.
In the case of creating a John Deere decal, the question to ask is not, "Will I get caught?" The question would be, "Will Deere & Company view this as infringement?"
What if your fourth grader duplicated perfectly the John Deere logo on his notebook at school? Would Deere & Company view this obviously unauthorized use of the logo as a trademark infringement? Would the company's legal department send the child a cease-and-desist letter? Would he get detention? Would his colored pencils be confiscated? Would the company even care?
Deere & Company holds a trademark registration on not just the logos they use, but also on the distinctive green-with-yellow stripe color combination used on most of their farm equipment. No other farm implement company may use color schemes that are confusingly similar. Deere doesn't own the green (they tried), nor do they own the yellow, but they own the green-with-yellow stripe. So, if a body shop restored a John Deere tractor's paint scheme, would people become confused? Would Deere sue them for infringement? Would they even bother to send a letter? Or would they view it as a non-issue, feeling that their legal department has better things to do?
It doesn't matter what we sign makers believe.
If Deere & Company does not view it as infringement, it is not infringement. You might think, "What if a court decides it's infringement?"That wouldn't even happen if Deere doesn't view it as infringement. Think—if Deere doesn't litigate, how would the question even get to court in the first place? It wouldn't. There are no trademark police prowling for trademark infringers. Trademark police do not exist. And a citizen off the street certainly cannot initiate a trademark litigation on Deer's behalf. It is solely Deere's responsibility to determine whether (they believe) infringement has occurred and whether to take any action and how far to pursue it. And even if Deere litigates, there is no guarantee that a court will side with the company. Do you think a judge will throw the book at a fourth-grader? What will Deer's stockholders think? Will the CEO think it a good use of the legal division's budget?
When Starbucks sent a cease-and-desist letter to a pub in the St. Louis area a few years ago because the pub was calling one of its house drinks after a cold-coffee brand belonging to Starbucks (though spelled differently), the bar owner shrewdly sent a check for six dollars to Starbucks, turning over his ill-gotten profits, and then alerted the local news media. Of course, the local media had a field day with the story and Starbucks got a bit of a black eye for using what was termed a "big stick" against the poor bar owner, who got some nice publicity out of it. My point? Although corporations are generally aggressive about protecting their trademarks, they are also aware that a legal action can backfire if it seems frivolous. They don't just sue everybody willy-nilly. In one of my paralegal classes at a local college here, my instructor, a trademark lawyer, said that litigation is expensive even for big corporations, and they try to avoid it if possible. She said they almost always try to handle a problem with the cheapest method, which is a cease-and-desist letter.
The Frapuccino frap
Deere & Company is certainly not above mounting lawsuits. They sued a major Chinese farm equipment manufacturer (around 2014) in a Chinese court—and won not only an injunction but a monetary award as well. The Chinese company was painting their tractors green and yellow.
Chinese court vindicates Deer & Co
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If a consumer sees a green and yellow tractor, the viewer has the right to expect that the equipment is made by Deere & Company, and not some other agricultural manufacturer. If a business has a big illuminated sign with a John Deere logo, consumers have the right to expect the business to be an authorized dealership. This is the point of trademark law—to prevent confusion in the marketplace. A protected logo serves to identify the source of goods.
If a body shop repaints a tractor and installs John Deere decals on it, what is the liklihood of confusion? What if they put the wrong decals on? Maybe the decals for a Model A onto a Model B? Only my grandpa would know.
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Not every duplication of a protected trademark constitutes infringement. Don't confuse copyright protection with trademark protection. Copyright forbids copying. Trademark forbids the creating of confusion in the marketplace.
Interestingly, one of the most legally aggressive entities in the US, The National Football League, allows the duplication of its team names and logos—by grade schools—as long as they don't change the colors or the artwork. And even when the schools change the colors, the NFL doesn't prosecute. Why does the NFL allow this? Well, it probably creates goodwill for them. And the NFL probably doesn't feel threatened by fourth-graders.
According to Brian McCarthy of the NFL, as quoted in the South Florida Sun-Sentinel of November 12, 2020—
At the moment, no grade school here is clamoring to use the Chiefs logo.
How does that old poem go?
"But there is no joy in Mudville, mighty [Patrick] has struck out..."
Maybe next year.
Brad in Kansas City
