1. Introduction – 2. Trademark Background – 3. Overview –The Essential Function – 4. Referential Use and Embellishment -5. Referential Use – 6. Embellishment – 7. Infringement Analysis – 8. Trademark Use Requirement – 9. Likelihood of Confusion – 10. Analysis – 11. Conclusion – 12. Final Thoughts.
Can the owner of a trademark registered for toy cars (hereinafter “model cars”) prohibit the manufacture and sale of model cars which constitute naturalistic reproductions of real cars (hereinafter “automobiles”) on which the owner’s mark appears? We conclude that the manufacturers of model cars should be free to make and sell naturalistic reproductions of automobiles to which they have affixed relevant automobile trademarks even though the mark may be owned by another entity seeking to prevent such use. This is true where the trademark is affixed to the model’s visible exterior as a descriptive, or referential, element of the automobile’s design (hereinafter the “Detail Trademark”)