CHAPTER TWO…

(Please read the introduction and first chapter to this book before reading this. You can find that at… Introduction and First Chapter.)

If, after the introduction and first chapter, you are starting to question why you would ever need to do a trademark for anything in your fiction, let me simply say…”Good.”

As I learned more and more about trademark, I started to understand that this area of the law is very similar to all the myths pushed by traditional book publishers.

In other words, most of it is just flat wrong for fiction writers.

But there are places and times it is right, and understanding that is key and the reason I am doing this short book.

But first more on some basics.

“Trademark law is the body of principles that the courts use to decide disputes regarding names or other devices being used to identify goods and services in the marketplace.”

Stephen Fishman… TRADEMARK. Nolo Press

I want to point out a key phrase: “…courts use…”

Just wanted to point that out. Fishman then goes on to detail out some basic principles of trademark. I am going to quote him here on his first two and as writers, I want you to think about whatever property you were hungry to go file for trademark protection on. You know, that character, that series, that business name, whatever that you have been lead to believe you need to file for trademark protection.

“The first business to use a trademark in a marketplace owns it against later users.”

“To qualify as a trademark, a name, logo, or other device used by a business in its marketing activities must either (1) be unique enough to earn customer recognition on its own… or (2) have earned customer recognition through its continued use over time…”

Stephen Fishman… TRADEMARK. Nolo Press

Then he talks about numbers of other principles, all dealing with court stuff, because trademark laws and principles are designed to settle disputes. Get the book and read them.

So you wrote a nifty book, starting a nifty series. You don’t understand copyright, so you are afraid someone is going to take your series, so you think you need to trademark it for some reason lost to the mists of logic, even though you know nothing about trademark either.

Ask yourself, does this new book of yours have customer recognition, or has it earned customer recognition?

Nope and nope.

And if you really are the first to use this nifty, original idea, not only is the form protected under copyright, but you are already protected under trademark. However, I sincerely doubt (at a level of about 100% certainty) that your idea is original in any fashion, and certainly not enough to be protected past the copyright protection of the form of your writing.

CUSTOMER CONFUSION

Here is another major area that just should make most fiction writers turn away from thinking much about wasting money and time to file for a trademark on a series, a book, or a business name.

Courts, in cases of trademark disputes (remember, trademark law is only to settle disputes) look to see if the infringing trademark (filed or not) would cause customer confusion.  If there is no customer confusion, courts toss it.

Say I had a bad brain fart and thought that the term “Pop-Up” that we use for a certain type of teaching form should be trademarked. And the next day, after my brain fart, I walk into a stationary store and see a card that when you open, something pops up saying “Happy Birthday” and the card is called a “Pop-Up.” And I get all angry and sue.

First off, I would not be able to file for the term. It is too common to be accepted. Second, no sane attorney would take the case, and third the court would toss it for lack of customer confusion.

So ask yourself when thinking of spending money filing for trademark protection on a word, logo, or business name… Do I already have first use inside publishing and second, will customers get confused (meaning having someone else use this hurt my sales.)

And then ask if you would be willing to spend even more money going to court to defend your trademark.

In other words, when you apply customer confusion aspects to trademark, it makes things a lot clearer.

NOW A POSITIVE

I will try to end each chapter going forward with one positive about trademark for fiction writers.

Just like copyright, trademark is a property. So if you have something that fits what Fishman said above, and needs to be protected from possible customer confusion, and you manage to get the filing done and the trademark filed federally and in your local state as well, then you have something that might just have some value.

Property has value. Trademark is an IP.

I doubt if many of you understand what kind of value, since most writers don’t understand the value of their own copyrights, let alone how that value can be ascertained. But just trust me, a well-established trademark, protected and renewed, with an active business presence, has value.

And that is a positive.