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The times intellectual property played a role in Halloween

On Behalf of | Oct 29, 2021 | Intellectual Property

Every holiday has its own fun, but Halloween is often in a league of its own. The costumes, the candy, the movies … there are few other holidays that have as many holiday-specific forms of celebration. Not surprisingly, with so many Halloween specific types of celebrations there are lots of examples of inventions and creations that led to some pretty serious intellectual property battles.

Although we will mostly avoid the details of specific cases, some interesting intersections between intellectual property law and this spooky holiday include the following.

A trick or a treat? Halloween masks and IP rights.

Few Halloween movie franchises are more well known then Michael Myers and the Halloween movies. This is the franchise that donned Jamie Lee Curtis as the Scream Queen back in the 1970s. Interestingly enough, the mask used by Michael Myers is a prime example of the intersection between intellectual property law and Halloween.

The mask for this character was originally a mask of Captain Kirk. The costume designer for Halloween took the mask molded off of William Shatner’s head for Star Trek merchandising and cut out the eyes along with a few other minor adjustments for the iconic look.

After complete, he tried to get IP protections on his creation. Unfortunately for him, the court stated that the changes were not enough to make it an original work of art. The ultimate lesson: a mask that qualifies as a sufficiently original work of art could qualify for protection, but it needs to be truly original.

Definitely a treat. Halloween candy and IP protections.

Candy qualifies for certain protections, too. One classic example is the Hershey’s Kiss. The company was able to get and maintain trademark protections on that iconic teardrop shape. Another example is the triangular prisms of the Toblerone bar.

When does the shape qualify for protections? In general, the United States Patent and Trademark Office (USPTO) requires the shape of an “acquired distinctiveness” to qualify.

Don’t forget the entertainment! Halloween meets Hollywood.

Michael Jackson’s Thriller and the Monster Mash of the 1960s, even the score of the Halloween movie franchise noted above are a couple of famous musical works we often associate with Halloween. These types of works, along with movies like the Scream and Saw franchises, qualify for intellectual property protections as well. When structured wisely, the IP tools not only offer protection but also allow the author or inventor to reap the financial rewards that result from their creations.

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