Trademarks are intended to be a "source identifier". They are not intended to be a restraint on anyone's vocabulary.
Imagine a science fiction world where certain words or phrases could be used only by certain individuals, and anyone who used a "marked" dictionary word could be punished severely. In my alien Djinn romance worlds, I did this with a clothing color.... but I digress.
There's an interesting (potentially game changing) trademark case "District Court In California Recognizes Plausible Trademark Rights Over Fictional Star Wars Board Game."
This ongoing case is about the presumably made up name of a fictional card game within the Star Wars franchise, that has been mentioned in the scripts, but allegedly has never been trademarked and turned into real world merchandise by Lucasfilms Ltd.
https://www.limegreenipnews.com/2018/05/district-court-in-california-recognizes-plausible-trademark-rights-over-fictional-star-wars-board-game/#page=1
For Hogan Lovells, legal bloggers Julia Anne Matheson and Gabriel Guerra Medellin offer analysis of the complexities and difficulties of claiming rights over a word, based on its inclusion in the scripts/books, and the game's importance to Han Solo's career.
Suppose that instead of calling the game Sabacc, Lucas had called it CockyPoker.
Another trademark battle has been fought and won/lost concerning whether or not the casual observer can distinguish the silhouette of a taurophon from a griffin (or griffon).
In "General Court Considers Likelihood Of Confusion Between Mythical Creatures", a European court (apparently not fans of the Harry Potter world... or of Vauxhall Motors which has a rampant griffin for its symbol) fret over how well known a griffin (or griffon) might be.
Apparently, the intellectual elites believe that the undiscerning population could be disastrously confused by even a low level of similarity, and so, a taurophon may not squat in silhouette with its tail raised.
Legal blogger Karen Dorsey for Taylor Wessing explains the Court's remarkable thinking.
For those interested in seeing if anyone is trying to trademark words in your book titles, follow cockybot.
Victoria Strauss shares trademark attorney Brad Frazer's comments on how far you can go when trademarking words to perform a source identification function.
http://www.victoriastrauss.com/2018/05/09/trademark-shenanigans-weighing-in-on-cockygate/
It's invaluable advice for single title writing authors.
Also helpful, from early 2017, Melissa Thompson wrote for Business.com "5 Trademark Cases And What You Should Learn From Them".
https://www.business.com/articles/5-trademark-cases-and-what-you-should-learn-from-them/
Who knew that one has to be careful when describing a hero as the short form of "superlative"... at least as a source identifier.
All the best,
Rowena Cherry
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I refuse to stop using "superhero" as a common noun within the texts of my books. Why should we be intimidated by manifestly absurd claims? Not that the issue comes up that often in my fiction. I once had a character say, "I am not Superman," to which an editor objected because of trademark qualms. So I changed it to, "I am not a comic-book superhero," which the editor accepted. Given the explanation in one of the cited articles that trademark ownership is restricted to situations where the word indicates a "source," I think we're safe in using the S-word. Not to mention that "the superman" was a concept invented in the nineteenth century.
ReplyDeleteGood points.
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