Re: title protection?

On Fri, 12 May 2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
>
> On Tue, May 09, 2000, Don Roemer <droe2[_at_]earthlink.net> wrote:
> >
> > On Sun, May 07, 2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
> > >
> > > I can understand how a big corporation like IDG would wish to hire
> > > lawyers to protect its "intellectual property."....
> >
> > How is this any different then the "Toys R Us" folks enforcing their
> > rights? The insurance agency (Insurance R Us) was stopped. Ditto for
> > the gym, Bodies R Us and countless others. I, too, thought they went a
> > bit overboard (if the press reports were accurate) on ocassion.
> >
> > Trademarks must be vigorously enforced.
>
> well, it is different because the "...FOR DUMMIES (R)" trademark
> is being applied to BOOK TITLES, not the name of a business.
> (after all, this is a discussion of copyright.)
>
> all i was saying is that BOOK TITLES have not hitherto been
> thought to be protected by copyright. yet in this case a BOOK
> TITLE is being privatized and propertized by one company that
> feels that any BOOK TITLE that is similar would infringe on
> its trademark, regardless of whether or not it is possible to
> copyright the title.
>
> one difference between a TRADEMARK and a COPYRIGHT is that
> the former must be "vigorously enforced" or it is lost, while
> the latter need not be. and i think it is good that copyright
> need not be vigorously enforced by copyright owners -- otherwise
> the richer and more powerful will win, because it is expensive
> to conduct such suits. the goal should be to make more efficient
> the progress of science and the useful arts, not to protect
> private property.

Mr. Eldred is right that book titles are not protected by copyright law. He is also right, up to a point, that book titles may not be protected by trademark law. Specifically, a title may not be registered as a trademark if it is the title of a single work. One of the policy reasons underlying this is, as Mr. Eldred points out, that fact that trademark protection is potentially perpetual: it endures as long as the mark is used in commerce. It would clearly not be in the public interest for a publisher to claim trademark rights in the title of a public domain work, say MOBY DICK, and thereby preclude competing publishers from publishing the work under its proper title -- thus obtaining a monopoly in the distribution of a public domain work. Thus, the title of a SINGLE work may not be registered as a trademark.

However, a word or phrase that serves as a source-indicator for a line of products or services (even if those products happen to be a series of books) is indeed a trademark, and may be registered and protected as such. FOR DUMMIES is not the title of a single work. Its owners argue -- rightly, in my view -- that their use of that phrase IN the titles to multiple works acts as a source indicator. In other words, the buying public, seeing the phrase FOR DUMMIES, will assume that the work comes from the same source as the other FOR DUMMIES books. This is exactly what trademarks are supposed to do. Other examples of trademarks for series of books include THE HARDY BOYS, THE CHEATER'S GUIDE TO ..., and the law students' favorite, ... IN A NUTSHELL.

> Robert C. Cumbow
> Graham & Dunn, P.C.
> 1420 Fifth Avenue, 33rd Floor
> Seattle, Washington 98101-2390
> Phone: 206-340-9619
> Fax: 206-340-9599
> E-mail: rcumbow[_at_]grahamdunn.com
> Website: http://www.grahamdunn.com/
>

		Big law firm experience
	without the big law firm experience.SM

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