Trademark vs. Copyright.
Jun. 25th, 2004 09:13 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
puppetmakerShe was upset. Very Upset. I could hear it in her voice which cracked with emotion. “You can’t do this!” she said trying to control her feelings, “You can’t use that title. It’s my title. I have used it for years in my writing workshop and I almost have a book published with the same title.”
Now almost have a book published is a red flag area for me anyway. I think everyone on the planet has a book that is almost published. “I’m sorry ma’am,” I say in my controlled but sympathetic tone, “The title you want to use is not the main title but a subtitle for the book”
“I have a copyright on the Title!” she declared cutting right over my reply.
“No Ma’am.” I said, “You have a copyright on the material in your book. You can not copyright a title.”
“Well I did.” she snorted, “and if you publish this I am going to sue your company for copyright infringement.” Another red flag that we have been told to get the information and pass it onto legal.
“Ma’am,” I replied, “You can’t copyright a title.”
She went on to say that she also had the trademark to the the title which made very little difference since these were common words strung together as a title and I could find 6 other books on Amazon with the same string of words in the title. She might have a logo based on the words and that she could trademark but not the words themselves unless they are unique (ie: Pepsi or Starbucks). I took her information and sent it to my friend down in legal who sent her a very formal legal letter explaining why she didn’t have a leg to stand on and the company really didn’t like frivolous suits.
On a costuming board I belong to, someone wanted to start up a costuming business for mostly renaissance costumes and costumes inspired by films and call it
something based on a place mentioned in Lord of the Rings and wanted to know about the copyright on the name. Considering I know one book shop called Bagg End and pub called The Prancing Pony, I really don’t see this as a problem. I don’t think she is going to start a chain of costume shops selling these sorts of clothing. I told her that she needed to look at Trademark not Copyright to see if she might get into trouble. Considering all the Tolkien fan sites out there that both the estate and New Line have left alone, they can’t really start cracking down now.
Here are the definitions from the Merriam-Webster Dictionary of Law, © 1996 Merriam-Webster, Inc.
Trade·mark
Pronunciation: 'trAd-"märk
Function: noun
: a mark that is used by a manufacturer or merchant to identify the origin or ownership of goods and to distinguish them from others and the use of which is protected by law
NOTE: The Patent and Trademark Office registers trademarks and service marks that are used in interstate commerce or in intrastate commerce that affects interstate commerce. There are also state registration statutes for marks used in intrastate commerce. A trademark or service mark need not be registered for an owner to enforce his or her rights in court. The common law recognizes ownership of a trademark, established by actual and first use of the mark, but it extends only to the areas or markets where the mark is used. Federal registration of a trademark gives rise to a federal cause of action for infringement in addition to the common-law claim. Registration also serves as evidence of the owner's exclusive right to the continuous use and validity of the mark, and as constructive notice to the world of the claim to the mark. To be a valid trademark at common law and for federal registration, a mark must be distinctive; a descriptive mark may become distinctive by acquiring secondary meaning.
Copy·right
Pronunciation: 'kä-pE-"rIt
Function: noun
: a person's exclusive right to reproduce, publish, or sell his or her original work of authorship (as a literary, musical, dramatic, artistic, or architectural work)
NOTE: Copyrights are governed by the Copyright Act of 1976 contained in title 17 of the U.S. Code. The Act protects published or unpublished works that are fixed in a tangible medium of expression from which they can be perceived. The Act does not protect matters such as an idea, process, system, or discovery. Protection under the Act extends for the life of the creator of the work plus fifty years after his or her death. For works created before January 1, 1978, but not copyrighted or in the public domain, the copyright starts on January 1, 1978, and extends for the same period as for other works, but in any case will not expire before December 31, 2002. Prior to the enactment of the Act, copyright protection was available for unpublished works only under common law. The Act abolishes the common-law rights, as well as any rights available under state statute, in favor of the rights available under the provisions of the Act. The Act provides for certain exceptions, however, including rights to protection for works not fixed in a tangible medium of expression, and rights regarding any cause of action arising from events occurring before January 1, 1978.
If this sorts out the difference for at least one person, I will feel that this entry has been worth it.
Now almost have a book published is a red flag area for me anyway. I think everyone on the planet has a book that is almost published. “I’m sorry ma’am,” I say in my controlled but sympathetic tone, “The title you want to use is not the main title but a subtitle for the book”
“I have a copyright on the Title!” she declared cutting right over my reply.
“No Ma’am.” I said, “You have a copyright on the material in your book. You can not copyright a title.”
“Well I did.” she snorted, “and if you publish this I am going to sue your company for copyright infringement.” Another red flag that we have been told to get the information and pass it onto legal.
“Ma’am,” I replied, “You can’t copyright a title.”
She went on to say that she also had the trademark to the the title which made very little difference since these were common words strung together as a title and I could find 6 other books on Amazon with the same string of words in the title. She might have a logo based on the words and that she could trademark but not the words themselves unless they are unique (ie: Pepsi or Starbucks). I took her information and sent it to my friend down in legal who sent her a very formal legal letter explaining why she didn’t have a leg to stand on and the company really didn’t like frivolous suits.
On a costuming board I belong to, someone wanted to start up a costuming business for mostly renaissance costumes and costumes inspired by films and call it
something based on a place mentioned in Lord of the Rings and wanted to know about the copyright on the name. Considering I know one book shop called Bagg End and pub called The Prancing Pony, I really don’t see this as a problem. I don’t think she is going to start a chain of costume shops selling these sorts of clothing. I told her that she needed to look at Trademark not Copyright to see if she might get into trouble. Considering all the Tolkien fan sites out there that both the estate and New Line have left alone, they can’t really start cracking down now.
Here are the definitions from the Merriam-Webster Dictionary of Law, © 1996 Merriam-Webster, Inc.
Trade·mark
Pronunciation: 'trAd-"märk
Function: noun
: a mark that is used by a manufacturer or merchant to identify the origin or ownership of goods and to distinguish them from others and the use of which is protected by law
NOTE: The Patent and Trademark Office registers trademarks and service marks that are used in interstate commerce or in intrastate commerce that affects interstate commerce. There are also state registration statutes for marks used in intrastate commerce. A trademark or service mark need not be registered for an owner to enforce his or her rights in court. The common law recognizes ownership of a trademark, established by actual and first use of the mark, but it extends only to the areas or markets where the mark is used. Federal registration of a trademark gives rise to a federal cause of action for infringement in addition to the common-law claim. Registration also serves as evidence of the owner's exclusive right to the continuous use and validity of the mark, and as constructive notice to the world of the claim to the mark. To be a valid trademark at common law and for federal registration, a mark must be distinctive; a descriptive mark may become distinctive by acquiring secondary meaning.
Copy·right
Pronunciation: 'kä-pE-"rIt
Function: noun
: a person's exclusive right to reproduce, publish, or sell his or her original work of authorship (as a literary, musical, dramatic, artistic, or architectural work)
NOTE: Copyrights are governed by the Copyright Act of 1976 contained in title 17 of the U.S. Code. The Act protects published or unpublished works that are fixed in a tangible medium of expression from which they can be perceived. The Act does not protect matters such as an idea, process, system, or discovery. Protection under the Act extends for the life of the creator of the work plus fifty years after his or her death. For works created before January 1, 1978, but not copyrighted or in the public domain, the copyright starts on January 1, 1978, and extends for the same period as for other works, but in any case will not expire before December 31, 2002. Prior to the enactment of the Act, copyright protection was available for unpublished works only under common law. The Act abolishes the common-law rights, as well as any rights available under state statute, in favor of the rights available under the provisions of the Act. The Act provides for certain exceptions, however, including rights to protection for works not fixed in a tangible medium of expression, and rights regarding any cause of action arising from events occurring before January 1, 1978.
If this sorts out the difference for at least one person, I will feel that this entry has been worth it.
