On Sun, Sep 21, 2008 at 3:20 PM, Anthony wikimail@inbox.org wrote:
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.
Oh yeah, and this to add. Wikia doesn't even recognize the trademark on its front page, with a (TM) or (R) or with a "Harry Potter is a trademark of Whoever". That strengthens the dilution case, right?