It should be noted that trademark, unlike copyright for instance, is not for the benefit of the holder, but for the benefit of the consumer, to avoid confusion between products.
In fact, there is a specific exemption on this issue:
So, not only could Mazzmatazz potentially defend against the BBC takedown notice by claiming that her reinterpretation of the monster figures from the show is just that — a creative reinterpretation that doesn’t infringe any trademark, she might also be able to turn around and go after the people who used her pattern to create and sell little monster dollies on eBay. She could, in sum, achieve a win-win. That is, if the entire situation weren’t so ludicrous to begin with. After all, are the “unscrupulous individuals” who used the pattern that Mazzmatazz herself posted online to knit Doctor Who dolls and sell them online really making significant enough revenue that the BBC itself should be threatened?I think that we have two lines, the the first IP lawyers and license holders insisting, either through legislation, regulation, and court precedent on an increasingly expansive definition of what is covered and what is prohibited, and the public and the political class, who are increasingly concerned about the degree to which this is being taken.
I think that the turning point was BlackBerry v. NTP, because when the Judge issued an injunction, BlackBerry's (in retrospect remarkably savvy) response was that it could not separate government and commercial users, and so it would shut down the entire network, which included many members of Congress and Federal Judges, along with most of the Congressional aides and court clerks.
When the movers and shakers in IP regulation were going to be bitten, and bitten hard, on this, suddenly NTP's demands became more reasonable, but the seed of doubt on IP triumphalism was sown.
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