Trademark Names?

[Nateskate]

I was wondering about the wisdom of Trademarking names of places and characters in stories, especially in fantasy; and Intellectual properties? Is the name itself trademarked, or the name and the essence of the character? Spiderman-bit by spider, becomes a web-slinging super hero.

I.E- If you use some name off a board "Nateskate" for instance, can you be sued for stealing intellectual property, since someone else may have created it?

The obvious other question is regardless of trying to think origional thoughts, there's bound to be a chance that I'll use names already invented. (by accident) Does a disclaimer cover it? Even if your character is unique, is there a risk of using names someone else might have used?

[Tirjasdyn]

I.E- If you use some name off a board "Nateskate" for instance, can you be sued for stealing intellectual property, since someone else may have created it?


I am not a lawyer...please talk to a trademark lawyer. This is from my own research:

Trademarks have to be registered to be legal, putting TM next to something doesn't make it a trademark.

Trademarks are specific. That mean you can have a trademake on spiderman but you have have to take out multiple trademarks for the name, how he looks, images of him, the use of him on stationary, how he became spiderman, what colors he used in his uniform and mutiple ones for each color change. Knock offs might use a green spiderman and get away with it, for example. Or in the eights during the first Carebear wave you could buy a knock off Carebear for cheap...simply because they didn't have a heart button on the butt. They got around the trademark that way. Silly really.

If your that worried about you can look trademarks online for free. Do a search on google. Sometimes the company lets them lapse, untrademarking it for all intents and purposes. Once something is trademarked you must go after everyone who use it or risk loosing the trademark. Ie: I could name a monkey who eats spiders Spiderman, I may get a cease and desist letter however unless they trademarked Spiderman AS a monkey who eats spiders I'll probably be okay. I just have to prove that my spiderman does not resemble any of their trademarks.

Really though, unless you're ripping your character off another well known product or book you'll be okay. If you have an adventurer named Richard, no one will go after you. Unless they are five ways from stupid. Now if you copy Terry Gookind's writing word for word, he'll probably sue your *** and rightfully so. If you make a character named Richard who acts exactly like Terry Goodkind's Richard you might have people calling you a hack but unless you copied the text exactly and TG has a trademark on his character then you might be okay...except people will call you a TG Ripoff.

I've gotten cease and desist letters for my website. Specifically from a company that will paint your wall to look like outerspace. They called themselves Starscapes(tm). Now on my site is a section called starscapes on little ameture images I've created of stars used for desktop wallpaper. When I got the letter I did a search on the trademark and found that they did indeed own it (I've gotten ones where no such trademark exsists and basically told them to take a walk, in nice terms). But the trademark was for physical wallpaper that you put on real walls. Now none of the pictures are actually called starscapes just the section of the website. So I sent them a letter back stating how a section of a website is different from physical wallpaper. Problem solved. I did consult a lawyer resource. Can't be too careful and gotta protect yourself from the nutjobs.

[MadScientistMatt]

I am not a lawyer...please talk to a trademark lawyer. This is from my own research:

Trademarks have to be registered to be legal, putting TM next to something doesn't make it a trademark.

Actually it does if you are using it as a real trademark... and it does not have to be registered. Here is an explanation from the Patent and Trademark Office. (http://www.uspto.gov/web/offices/tac/doc/basic/register.htm)

In writing, characters are often protected under the "right to create derivative works" in copyrights.

[Tirjasdyn]

Actually it does if you are using it as a real trademark... and it does not have to be registered. Here is an explanation from the Patent and Trademark Office. (http://www.uspto.gov/web/offices/tac/doc/basic/register.htm)

In writing, characters are often protected under the "right to create derivative works" in copyrights.

According to that description just using Tm or Sm doesn't give you too much of an ability to defend the trademark.

In my Richard example you could get nailed by "derivitive works" if you did the character named the same and acting the same in your own words. But just naming a character that no.

Place names are fun...you can't copyright those but you can trademark them.

Anyway, still not a lawyer...please contact a trademark lawyer for real world advice.

[Maryn]

I'm no lawyer, Nate, but it's always a good idea to run your major characters' names through a search engine, plus any particularly nasty minor characters. It allows you to see who the most famous people with that name are and what got them mentioned online.

My brother's name, for instance, is not unique to him, but he's got the most hits by far and it takes only a scan of the google results to tell what he did for a living--and not use that name for your character who does something similar.

You don't want to do what a writing acquaintance did, create an evil computer genius and name him William Gates.

I doubt very much that an online user name--NateSkate, or Maryn, for instance--would be actionable, even if you made Maryn the most evil character ever. (In fact, I'd quite enjoy it!)

Maryn, only slightly evil

[Berry]

I'm no lawyer, Nate, but it's always a good idea to run your major characters' names through a search engine

This sounds like a reasonable idea, though I think that taking out trademarks on character names, places and so on BEFORE you sell your book is not necessary AND it's expensive. The filing fee is $325 per mark, whether it's granted or not.

Better, in my opinion, is let the publisher worry about whether it's necessary and let them spend the money.

[Nateskate]

I'm no lawyer, Nate, but it's always a good idea to run your major characters' names through a search engine, plus any particularly nasty minor characters. It allows you to see who the most famous people with that name are and what got them mentioned online.

My brother's name, for instance, is not unique to him, but he's got the most hits by far and it takes only a scan of the google results to tell what he did for a living--and not use that name for your character who does something similar.

You don't want to do what a writing acquaintance did, create an evil computer genius and name him William Gates.

I doubt very much that an online user name--NateSkate, or Maryn, for instance--would be actionable, even if you made Maryn the most evil character ever. (In fact, I'd quite enjoy it!)

Maryn, only slightly evil

If you search the right places, you will find some very interesting board names.

[Jaws]

Unlike copyright, one does not have to register a trademark before suing on it. Registration does have some significant advantages, but it's not required… and it can frequently be done through state authorities to provide the same evidentiary (if not procedural) benefits as a federal registration.

Keep in mind that "copyright" is about the author's right to control copying, while trademark is about the consumer's right to accurately know the origin of goods or services. Although these are both "intellectual property," the legal analysis underlying them is rather disjoint. For an explanation of why this is so, you could try reading my long, de-academized essay on fan fiction (http://www.authorslawyer.com/weft/fanfic.shtml), which asserts that characters are better analyzed under a trademarklike theory than under a copyrightlike theory.