I have collected wine corks that have the maker's name and/or logo on them. Can I create a product/brand to sell with the corks if the trademark or copyright symbol is not on the corks? Can I create a product using those wine corks if I partially design over the name/logo (for instance, if the name is "Barefoot", the design may leave "B...foot" showing)?
2 Answers from Attorneys
Unless you want to get sued for an incredibly large amount of money and get your products confiscated, no.
I think you would be better off either using blank corks or just showing the logos as they are. What you are suggesting is tampering with the logo in a manner that might raise objections by the TM owner. The key focus should be to (a) not suggest in any way that the TM corks are your products, (b) not suggest that the cork TM owners are in any way involved in or responsible for your product, or endorsing the product or your company, and (c) not alter the TM that the TM owner put on there, unless you are clearly doing it in a manner that the public will readily understand to be you making fun of the company's logo.
The fact is, the TM on the cork was intended to identify the wine, not the cork. I saw your earlier question (was it yours?) asking, "Can I create a product and brand using old wine corks that have the wine maker's name or/and logo on them?" Two Georgia lawyers basically said you would be infringing the trademarks. I'm not licensed to practice in Georgia, and perhaps Georgia has some interesting state trademark angles of which I am not aware, but in general, I would prefer to advise clients with a clever idea on how to do it lawfully. I think the approach in your first question is a far better way to go than then notion they drove you to of altering the marks (provided that by creating "a brand" you don't mean that the logos would be a part of your brand -- I'm assuming you mean you want to create a branded business by making products from, at least in part, old wine bottle corks bearing the wine maker's logo, and then selling those products).
I won't purport to give you specific advice on this. No lawyer would want to do that without a clearer understanding of exactly what you have in mind. But take a look 15 U.S.C. § 1114(1)(a) and (b), found at http://www.law.cornell.edu/uscode/text/15/1114, and plan a product that uses the corks bearing the TMs in a manner that does not misrepresent or tend to confuse (as described in the law), and when you have come up with what you think is consistent with the law, decide whether you want to take a chance on your interpretation or consult with a trademark lawyer just to be sure.
Keep in mind that no matter what you do, a TM owner might come after you. We see baseless TM infringement allegations every day. Some TM owners are more aggressive than others in hiring lawyers to go a bit overboard. A smart winemaker would, in my view, be thrilled if you graced a tasteful wine cork collection with the prominent display of the winemaker's TM on the corks that the wine maker sold (while the cork was still in its wine bottle, of course!). Great advertising. Only a foolish winemaker would mess with you and try to make sure none of the corks from its bottles made it into your product. But then, again, there is no way to prevent a foolish winemaker from foolishly hiring a lawyer to foolishly demand that you cease and desist.
Follow the law, and then double-check with a lawyer that knows TM law and will support your efforts to avoid TM infringement, and go for it. It is a real shame when the fear of a lawsuit makes the world a less interesting place.
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