Who would guess that a small, bespectacled, non-existent boy would cause such a fuss in the world of intellectual property.
To be fair, we can’t blame Harry Potter himself but his creator J.K. Rowling and the militant bosses of movie company Warner Bros.
Numerous legal wrangles over Harry Potter’s online presence reveal how new technologies are upsetting the traditional frameworks of intellectual property law. One such minefield involves online trademark infringement.
Harry Potter and the Trademark Disputes
The Harry Potter trademark is fiercely protected by Warner Bros., with hundreds of separate trademark registrations for Harry Potter, other character names, book names, place names and associated logos, symbols and words filed in the United States, EU and other countries.
So fierce are Warner Bros. that in the run-up to the first movie – Harry Potter and the Philosopher’s Stone – in 2000, they demanded that the webmasters of unofficial Harry Potter fan sites hand over their Potter-related domain names.
A media stink arose when 15-year-old Claire Field, creator of www.harrypotterguide.co.uk, complained of bullying tactics by the movie company. Her fan site was non-profit, educational and clearly unofficial, so whatever the rights and wrongs of the alleged trademark infringement, Warner Bros.’ attitude seemed more than a little unfair. The case did not come to court: the movie company wisely backed down to avoid a scandal and Claire’s website is now prefaced by the following message:
This site is an unofficial Harry Potter site…[with] no connection to J.K Rowling, Bloomsbury, Scholastics or Warner Bros.”
Time did not lessen Warner Bros.’ determination to stop fans having fun with Harry Potter. A small-time chef known as Ms. Marmite Lover who planned a Harry Potter themed dinner party in 2009 received a letter insisting she cancel the event as it was an “infringement of Warner’s rights.”
Trademark Law: The Digital Effect
Ridiculous as they are, these cases highlight the uncertainty around trademark infringement in the digital age, where members of the public can now easily create unofficial websites and digital works that use trademark names and logos.
And with increasingly powerful search engines, it is now easier than ever to discover trademark overlaps and outright infringements. Small companies may, with a simple Google search, find numerous other small companies operating with their name or variations of it.
Presumably Warner Bros. has a department dedicated to scanning the internet for unofficial uses of its trademark names – which is how it picked up on Ms Marmite Lover’s “illegally” named dinner party.
The Fine Print
In the U.S., names are not required to be registered with the U.S. Patent & Trademark Office to be protected by trademark laws. Registering does, however, have advantages for a company or individual wishing to stake their claim on a name or brand.
A company should take as much care not to infringe anyone’s trademark online as they do offline; lawsuits are a waste of everyone’s time and money.
Warner Bros. Misses the Magic
But I personally think that J.K. Rowling and Warner Bros. are missing valuable opportunities to strengthen their fan base. Have fewer kids bought Harry Potter books as a result of Claire Field’s fan site? Have fewer people visited the official Pottermore site because they’re too busy exploring Claire’s? Will fewer people watch the Harry Potter movies because they’re out instead having an unofficial Harry Potter themed dinner with friends?
The opposite is true: the buzz around Harry Potter is in large part due to the proliferation of unofficial fan sites, copycat books, videos and merchandise – and to Harry Potter themed events like Ms Marmite Lover’s dinner party.
In an article exposing The Walt Disney Company’s obsession with trademark and copyright laws, Michael Foster comments:
With a younger generation more accustom to distributing information freely along digital platforms, Disney will see less sympathy towards its protectionism in coming years.
I agree. J.K. Rowling, Warner Bros. and Disney should consider two things: first, whether it is possible to completely stop trademark infringement in the digital age; and second, whether it is strategically a smart thing to try to do.