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Comment by stonemetal12 | Hacker News Reader

How does it work for "Sherlock Holmes"? He is in that boat already. The last novel was published in 1927 so still copyrighted, but most of it is public domain. Considering you can still buy the novels you would think his name and appearance would be trademarkable, but shows and movies are in the clear as long as they stick to the public domain part of the lore.

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If the author had succesfully registered Sherlock Holmes as a trademark back in 1875, and kept efforts at protecting and re-reggistering that trademark continuously, then yes it should be a trademark, just like Bass is. A trademark isn't just the name "Bass" though, but clearly if someone else created a beer called Bass they'd have a job on to explain how it's not the same Bass that Bass trademarked.

Trademarks protect the consumer as much as the buyer. The only reason someone would want to put two "golden arches" on their burger joint is to make people think it's mcdonalds. That's bad for mcdonalds the company sure, but it's also bad for the customer who thinks they're getting a certain "standard", and do not deserve a counterfeit good.

If the concern is the protection of the consumer then why not just grant an enforceable "Authentic" badge? The consumer can see then what is and isn't legitimate. Companies will certainly capitalise and make said badge prominent and bring to court those that falsely use it.

The consumer is protected, the company has recognisable authority and the concept exists within public space.

That's what a trademark is

That's a really interesting point :)

I guess the biggest distinction between Sherlock Holmes and Mickey Mouse (aside the estates that own them) is that Mickey is a design as much as a character. The 3 circled motif is iconic enough that there is an ongoing spat between Disney and Deadmau5 -- though I do side with Deadmau5 on that, if just as a middle finger to Disney :D

I'm not suggesting law should stipulate that fictional characters need a design before they can be trademarked nor that Mickey Mouse shouldn't be trademarkable. Just that there is definitely an unclear grey area and I don't really know the answer to your question. But it is a very good question that gave me pause for thought.

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