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Abstract

Alluding to copyrighted works in branding is common, especially among small businesses that tend to fly under the radar of the large corporations which own those copyrights. The craft beer industry, for example, is fond of such allusions, incorporating references to movies, comic books, and video games in product names and beer labels. Whether to pay homage to the creative genius found in those copyrighted works or to cash in on popular enthusiasm for them, brand allusions to copyrighted works are common. However, such homages to copyrighted works can be as dangerous as flying into an asteroid field because they risk copyright and/or trademark infringement, especially when the allusion serves a commercial purpose. The stakes for the small business cannot be understated, given the time and money invested in branding, the high cost of trademark and copyright litigation, and the likely disparity in resources between the small business and the owner of the copyright. Further, trademark and copyright law is not always clear on these issues, case outcomes are often surprising, and little practical guidance exists for those who want to know whether a given allusion is permissible. This Article brings together trademark and copyright doctrine in order to provide a practical, step-by-step guide for avoiding infringement when alluding to copyrighted works in branding. Many examples—real and hypothetical— are considered to demonstrate the limits, uncertainties, and pitfalls of the current doctrine. Many small businesses allude to copyrighted works with the hope that they will simply avoid detection but are ready to surrender when the first cease and desist letter arrives in the mail. But for those who “prefer a straight fight to all this sneakin’ around,” this Article provides a head-on summary of the doctrine and defenses, as well as some strategies for avoiding infringement.

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