1. SoLeo
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    SoLeo New Member

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    Copywriting names, and trademark restrictions

    Discussion in 'General Writing' started by SoLeo, Sep 19, 2015.

    Sorry if there was a better place for this post, but it felt fairly general to me...

    First, I am curious what my restrictions are with using words that may or may not be registered trademarks to things that already exist as a name for my characters or factions.

    Also, is it true that names cannot be copy written, and so I shouldn’t be worrying about being %100 original in that regard?

    Here’s my conundrum… As far as I am aware, names cannot be copy written, which gives me some comfort except that I prefer the process of coming up with my own (supposedly) totally original words and using them as names for characters and factions and races. I actually entertained for a while that I had come up with completely original titles, until I googled them to find they were already well-established. It seems that every single combination of vowels and consonants in the English language up to eight letters has long since been discovered.

    Since there is no use whatsoever in maintaining secrecy about what the words I wanted to use are, they are Asyra, and Voore, which were going to be names for good guy/bad guy factions in my story. You can check out at least one of what are already called those things…

    www.voore.ro

    www.asyra.co.uk

    Ironically, the trademark word for my good guys is an electronic health screening machine, and the trademark word for my bad guys is an e-cigarette…go figure.
     
  2. SoLeo
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    SoLeo New Member

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    In other words, I want to know if I can name a fictional character, faction, or race a name that already exists somewhere in the world as a registered trademark. If it is used as a proper name, do I get around the fact that it is registered elsewhere?

    Sorry, I couldn't find anywhere to edit my first post, and it occurred to me it might be a touch vague... Thanks for your time, and any help.
     
  3. psychotick
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    psychotick Contributing Member Contributor

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    Hi,

    It's tricky. First no - proper names are not copyright protected. The same applies to titles. But they can be trademarked.

    Second what is trademarked is protected - but in a different manner to copyright. First you need to go to the USPTO and do a search to see if they have been trademarked, if the trademark is still current, and then to see what they're about. Mostly trademarks act to protect someone from having their name - whatever it may be - from being ripped off. So if the trademark for Voore? pertains to an eciggie than the danger they want to avoid is either having a competitor making eciggies using the same name and thus competing with them and confusing the market, or second anything that brings their name into disrepute.

    Since I assume that you're writing a book not making a brand of eciggies and trying to ride on their tailcoats then the first is not an issue. The second might be. For example if Voore is such an evil, unpleasant race, that could impact negatively on their brand recognition and they will defend that.

    In simple terms you can't write a book titled "Alien". It is trademarked as including books and movies and other things. And the company that owns the trademark would take one look at your work and say - he's trying to sell books by using our trademarked title.

    You also can't disparage a trademark without repercussions. Imagine if BMW were to read about a race of truly horrible / foul disgusting orcs called BMW's in a book. They would get upset even though the BMW's in question are not cars.

    Easiest and safest option by far is to change the name. So voore becomes eg vooren. Then go and do a search through the USPTO for it, see if it's there, and if not start doing a find and replace.

    Cheers, Greg.
     
  4. daemon
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    daemon Contributing Member Contributor

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    If the law prevented people from drawing negative attention to a brand, then unfavorable product reviews would be illegal.
     
  5. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    U.S. law has special provisions for trademark tarnishment, but it only applies to famous marks and wouldn't generally apply to a bad product review.
     
  6. psychotick
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    psychotick Contributing Member Contributor

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    Hi Daemon,

    A bad product review is a different kettle of fish. It is opinion and you are mostly protected in giving it as long as your opinion is genuine. Where we see cases of litigation against bad reviews occurring - and there have been a few recently - it's because there is reason to believe that the reviews have not been genuine.

    Disparaging a trademarked name is a different thing. Here we aren't talking about a bad product review. Here we're talking about the equivalent in legal terms of calling someone names.

    Let's return to the BMW scenario. Here we aren't talking about someone buying a car and finding it lacking in some way and reporting that opinion. We're talking about someone simply taking the name and saying something bad about it that may well have nothing to do with the quality of the product in question, but which still may be perceived by readers as a negative connection to it.

    Think of it as you would your own name and pretend your name is important to your career as in the case of an actor etc. Now say someone said to a friend "I know that daemon guy, and he's a serial pervert pedophile". Legally you would have little defence against that, few ways of stopping him even though you might be upset. You could sue them of course for slander and libel if the allegation was incorrect and not genuinely given. But that's your lot.

    Now say instead that some author - pick your favourite - wrote a book about a character named Daemon who happened to be a pervert serial pedophile etc, and worse that the book gained traction and soon everyone began to associate your name with the character's. Your illustrious acting carreer has just died - because who would want to watch a movie staring someone who is by nothing more than a name, a serial pervert pedophile. Who would hire an actor with that name? And it's not because of your acting or anyone's opinion about your acting. It's not because of anything you've done. It's not even legitimate opinion - or in fact opinion at all. You haven't been slandered or libelled because they haven't said anything about you. But you've still had your name dragged through the mud.

    Wouldn't you want to do something about that? And technically if you've trademarked your name you could. You could sue. Not for slander or libel or giving false reviews. For simply damaging your name which is in fact your livelihood as an actor.

    That's what a trademark allows companies to do for their products. Protect their good names - names which are often the backbone of their reputation etc - against disparagement. Even disparagement that is unwitting and not directly connected to to their products.

    I should end this by pointing out that I am not a lawyer, so take this post in that light, and if you need advice on this issue, you really should consult one.

    Cheers, Greg.
     
  7. Shadowfax
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    Shadowfax Contributing Member Contributor

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    I think @psychotick is crediting the trademark generation with too much power.

    If you include a mention of Coca-Cola, the drink, in a negative light you are quite likely to get a visit from a lawyer.

    If you mention Coca-Cola, the replacement for anthracite in the power stations of Mars, in a negative light, that visit is a LOT less likely.

    If you mention Voore, the e-cigarette in a negative light = lawyer (maybe)

    If you mention Voore, the evil world-destroying tyrants = a lot less likely.

    And the reason I say maybe about that lawyer's visit is that I'd be very surprised if a Romanian e-cig had gone to the time, trouble and expense of trademarking their name in the US, unless they have very big ideas about future growth.

    I'm also sceptical about Alien being trademarked - googling "is Alien trademarked" gets you hits on "Alien:Isolation", but nothing on the original.
     
  8. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    Keep in mind, as I said above, that for a federal claim of tarnishment, the trademark has to be famous. Not anyone with a registered mark can bring that claim.

    Other trademark owners may be able to state or common law causes of action.
     
  9. Steerpike
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    Steerpike Felis amatus Supporter Contributor

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    @Shadowfax

    "Alien" is definitely protected by trademark. More than one, in fact.

    http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4807:lqgon4.4.2

    http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4807:lqgon4.4.1

    Both of those filings have been renewed in the last couple of years. 20th Century Fox may well have additional trademarks for the name, some of which may be licensed out for other product areas. Never rely on a Google search to tell you if a name or phrase has trademark protection. Just search it through the USPTO (for the U.S.) or whatever country database you are interested in.
     

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