Photographing trademarked items. Photog 1, Mattel 0

Alan Browne writes:

However, the mere presence of a trademark or
trademarked item in a photograph does not mean the trademark is
being violated.

Very true. But many companies seem to want to err on the side of
caution, suing for every conceivable infringement.

In reality, only uses of a trademark that can cause confusion in the
mind of customers or clearly damage the value of the trademark or
reputation of its owner are legitimately actionable. But large
companies will sue for just about anything.

The logic behind this is that, in a society where nothing can be done
without a lawyer, and where lawyers start at $100 an hour, and where
lawyers charge for every second of their time (even time actually spent
by their paralegal staff doing the real work), nobody without extremely
deep pockets can even begin to resist a lawsuit. Nothing ever need go
to court; a company will simply bankrupt anyone with whom it disagrees
by burying it in legal preliminaries. The lawyers will kill off the
undesirable.

Isn't "claiming" the trademark enough (eg: in
magazines the little TM mark appears regualarly)?

Not in the U.S. First you must use the trademark regularly and be able
to prove that it has value as a trademark; then you can register it.
You can assert trademark with the TM, but to register it or defend it,
you must be able to show active use of the trademark as a trademark, and
active defense of its trademark status.

In other countries you can register first and obtain de jure protection
of your trademark, though.

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