Zombie Cinderella and the Undead Public Domain
69 Pages Posted: 18 Nov 2018
Date Written: October 26, 2018
This Article takes a recent case from the Trademark Trial and Appeal Board as the basis for an argument that trademark doctrine needs stronger protection against the exclusive commercial appropriation of characters that are in the public domain. In that case, a new doll company sought to register the mark “Zombie Cinderella” for dolls. The examining attorney initially refused registration because “Zombie Cinderella” dolls were found to be confusingly similar to “Walt Disney’s Cinderella” dolls. This ruling would have implied that Disney had the exclusive right to market dolls using the “Cinderella” name, a name that carries with it the long legacy of a canonical fairy tale, beloved since at least its first print publication in the seventeenth century. The T.T.A.B. overturned the refusal to register on appeal, but it largely relied on doctrine that characterized the “Cinderella” part of Disney’s trademark as a “conceptually weak” indicator of Disney as the source of the dolls, in part because of other participants in the doll market using the word “Cinderella” to describe their dolls. This doctrine on some level denies Disney exclusive rights to the word “Cinderella” merely because the company’s commercial appropriation of the character has not been complete enough. I argue that we need a doctrine that would deny even the first market entrant the ability to appropriate such a public domain character. I argue in favor of extending the doctrine of aesthetic functionality, which denies trademark protection to features of a product that confer a non-reputationally-related advantage on the trademark holder, to cultural elements in the public domain.
Note: DRAFT--Final Version forthcoming in Tennessee Law Review
Keywords: trademark, copyright, public domain, characters, aesthetic functionality
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