As unauthorized pop-ups proliferate, licensors increasingly face the decision of whether to enforce their trademark rights. That enforcement usually starts with a cease-and-desist letter, but those documents can take on a life of their own on social media.

And while licensors don’t want to upset the fans who enjoy these location-based offerings, they need to protect their trademark rights—especially if the venture is a money-making business.

For example, a life-size Candy Land—Hasbro owns the board game brand—replete with free displays inspired by Mars’ M&Ms, WildBrain’s Peanuts, and NBCUniversal Veggie Tales cropped up this summer in a small section of Beaumont Farm in Wallingford, CT. It’s unclear whether the brand owners were involved in the creation of the experience. Beaumont has also hosted seasonal displays for 18 years and, in the past, has featured the Abominable Snowman (Rudolph the Red-Nosed Reindeer) and Elsa (Frozen) at Christmas, the farm’s owner Jim Beaumont said.

About 10 miles away is Lyman Orchards’ four-acre Wizard of Oz corn maze that opened in September and runs through November 5. It features a yellow brick road through the maze. The copyrights on L. Frank Baum’s book have expired, but the trademarks for the characters remain and it’s unclear whether the licensor was consulted during the creation of the experience. The orchard charges an $11 admission, with $1 of each admission fee donated to the American Cancer Society (more than $730,000 has been raised since 2000).

“If you are not charging any money and it is truly an ohmage for kids, it’s likely fair use,” said Jed Ferdinand, the managing partner at Ferdinand IP Law Group. “But any time there is something that has a commercial purpose, then they cross the line. You must be careful because companies have very strict usage policies for their brands and characters. It comes down to what is a brand owner’s enforcement policy and how granular do you get and how do you go after super fans? That is what companies and brands grapple with all the time. You want people to be super fans and make their DIY t-shirts and other products. But you don’t want people to make money from it.”

That delicate balance is key to deciding whether to enforce trademark rights. It’s a crucial decision because courts have found that if companies don’t enforce potential trademark infringements, it could result in the abandonment or loss of trademark rights. There is, however, a middle ground in that while failing to prosecute infringements can reduce the strength of a trademark, it doesn’t always result in total abandonment, licensing executives said.

A number of factors likely inform a licensor’s decision to address fan-made pop-ups. One consideration is the brand owner’s own plans around location-based entertainment. For example, The Original Moe’s Tavern has existed in Cleveland, OH since 1956. That clearly predates Fox’s television series The Simpsons, but there could be confusion as Moe’s Springfield Pop-up Bar, which was launched by JMC Pop Ups in 2020, ventures to Akron, OH with the Missing Falls Brewery on January 19 for a one-week run. The pop-up is currently serving up drinks at 16 Stone Brewpub in Utica, NY through October 28 with a menu filled with Simpson’s-themed items.

“With copyright and trademark law, if you find out your brand is being used without a license and you disregard it, you run the risk of losing the trademarks,” said George Wade, president of consulting firm Bay Laurel Advisors. And while more unauthorized pop-ups are launching in response to the growing demand for location-based entertainment, brand owners still need to be vigilant about consumer products.

Stew Leonard’s, for example, is an eight-store grocery chain in the New York area that for several months promoted Ted Lasso biscuits replete with a photo of the series’ star, actor Jason Sudeikis. But after receiving a cease-and-desist letter from IP owner Warner Bros., the grocer reversed course and worded the display to support the series’ themes. UK-based mail-order company MacKenzie Limited, incidentally, is licensed for Ted Lasso Biscuits with the Boss shortbread biscuits.