Re: [WikiEN-l] Plot Element Copyright

In my opinion: "Harry Potter" is a trademark. In fact, it's probably a famous trademark. Wikia is using the mark in commerce, for profit, in direct competition with the official Harry Potter website. Seems to me to be a prima facie case for trademark infringement and/or dilution. Given the prima facie case, I don't see how Wikia has a fair use defense. Their use is for profit, it's not for product comparison purposes, it's not for the purpose of criticism. And I don't see how Wikia has a Section 230 or DMCA defense either (I'm not sure which if any applies to trademark law), as they directly control many of the aspects of the use, such as the domain name and the title of the site. Sites have definitely been threatened with trademark lawsuits for much less. I would think the use in the domain name alone would be enough for an open and shut case, considering the site is for-profit and not for the purpose of criticism. If the domain name were harrypotter.com it'd be a clear case of trademark infringement, right? Why should harrypotter.wikia.com be less clear? Anyway, I'm not a lawyer, and in fact I'm not nearly as familiar with trademark law as with copyright law, so it's possible, maybe even likely, I just don't know what I'm talking about. But if that's so it should be pretty simple for someone who does know about trademark law to clue me in. Alternatively, maybe Wikia has a trademark deal with the owner of the mark to share in the revenues. That seems to me to be the ethical thing to do. After all, it's what all the other ethical people profiting off the Harry Potter trademarks are doing - the people selling T-shirts, backpacks, coffee mugs, etc. Why not the people running the for-profit websites? Note that I wouldn't be suggesting this if we were talking about a WMF run non-profit Harry Potter encyclopedia offering critical reviews of the series. But Harry Potter Wikia is not really all that educational, and it's definitely not non-profit. I dunno, I'd love to hear why I'm wrong. It sounds like a lucrative business if I am. On Sun, Sep 21, 2008 at 1:20 PM, <WJhonson(a)aol.com> wrote: