Andrew's idea of dusting him off and remixing him for the 21st
century. Here's what she says:
This "Gumby Problem" is a lot like the Peter Pan case I worked on
(and eventually settled) at Stanford last year. The problem is: what
happens to trademarked characters once the copyrighted work falls
into the public domain. (I'm assuming here that Gumby is in fact in
the PD.) In the Peter Pan case, it's absolutely clear that the
original story was in the public domain (published 1911). So our
client used the characters and made a sequel to Peter Pan that is set
in this century. Our client had the characters act differently, put
them in new "modern" situations, and even challenged the idea that
growing up is necessarily a bad thing. The Peter Pan copyright owner
claimed both copyright and trademark infringement. There are cases
that state pretty clearly that the characters also fall into the PD
when a copyright expires, so the copyright question is, in my
opinion, fairly clear (though we fought about it in the Peter Pan case).
The TM question is trickier because generally a TM lasts as long as
it is not abandoned by the owner and is properly used to identify a
good or service. You can still parody the mark without infringement
or dilution concerns (thanks to our First Amendment), but you always
need to keep an eye out for whether you are using the mark in a
manner that will cause customer confusion (infringement) or whether
you are possibly diluting the Gumby mark. (Dilution claims stem from
either "blurring" [e.g., causing a famous mark to lose some of its
distinctiveness due to use of a similar marks] or
"tarnishing" [e.g., associating a famous mark with unpleasant or
unwholesome products/services] the mark.)
I hope this is helpful!
Best,
Colette Vogele
San Francisco
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