A cocky cock-up

Cafe Society
61

Or “Star Wars: The Story of Reagan’s National Security Dream”

Just to illustrate the differences between copyright and trademark protection, recall the Bouchat story. I’m just writing this all from memory, so some of the details might be off.

Bouchat was a Baltimore security guard who was a big football fan. When he learned that the Cleveland Browns were moving to Baltimore and were going to be called the Baltimore Ravens, he designed a logo and faxed it to the Baltimore stadium authority. As it turned out, the Ravens pretty much used Bouchat’s design exactly for the team’s first logo and helmet design.

Bouchat wrote in thanking the team for using his design and asking if he could have a helmet signed by all the players in return. The team said, in so many words, “Fuck off, this isn’t your design.” Bouchat sued. He won on copyright infringement. The team copied his design without permission. The Ravens changed to the current helmet design (raven’s head with a B). The damages were some insultingly small amount, if I recall less than $100.

Bouchat lost on trademark protection. Bouchat had copyright interest in his design, but no trademark rights. So the Ravens didn’t violate his non-existent trademark rights. He continued to try to get recovery. For example, he tried to get some money because the Ravens were still showing his old design in historical films and photographs displayed around the stadium.

No dice. The court said that regardless of past copyright infringement, they weren’t infringing any of his rights by showing historical images of players wearing their old uniforms. So far as I recall, it was still up in the air whether Bouchat could stop NFL-based video games from depicting players in the old Ravens helmet.

So that’s the distinction I’m making when looking at the issue of the font. Even if it mattered—which it doesn’t, because the registration is for a STANDARD CHARACTER MARK, which ignores any font issues—the font maker has only a copyright interest in the software. The font maker can perhaps accuse Hopkins of breach of contract for violation of the terms of service, but that’s irrelevant to whether Hopkins has trademark rights.

If the appearance of the typeface had been relevant to the trademark (and, recall that it’s not), she could just get another identical font from another typeface foundry or just hand-draw her trademark. Because the appearance of a typeface can be freely copied.

62

Both the Aspirin and Heroin trademarks were specifically taken away from Bayer under the Treaty of Versailles.

63

You…can tell that…from that song?

64

One day, that girl’s going to be President.

65

The latest.

66

I can hear Jarvis Cocker’s sigh of relief. I’m sure CD covers were next on her hit list.

And spaniels.

67

And now “Dragon Slayer.”

68

Next up: someone tries to patent the idea of printing the title on the outside of the book, as a new usability feature. :slight_smile:

69

The Patent and Trademark Office seems to have adopted “oh, sure, whatever, granted” as a norm. Isn’t it supposed to be that if something is in preexisting common use in the general culture, you don’t get to patent or trademark it?

I suppose it was inevitable that when the rate of innovation became such that it was no longer humanly possible to bring an actual model of every proposed patented item or a proof print of the proposed trademark for them to look at, they would switch to an “honor system”, but really, ISTM trademarking just the usage of “cocky” for Romance novel titles or “Dragon Slayer” in Fantasy is like trademarking “funky” for use in song titles. It should have failed the laugh test coming in the door, and been wadded up and thrown in the basket before the applicant’s eyes.

70

I hope these bozos have to pay big bucks for wasting everybody’s time. Better yet would be if every author whose books would have been affected gets to show up on their doorstep and give them a noogie.

71

It seems to me that reaching a conclusion based on a small number of selected instances isn’t likely to lead to a reasonable conclusion.

I deleted the reference to patents, because that’s a different issue.

Regarding trademarks, this is not the standard. A trademark examiner doesn’t ask whether “something is in preexisting common use in the general culture.” That isn’t the line for whether something is registrable as a trademark.

What a trademark examiner asks is whether a term is distinctive and capable of serving as a source identifier for the goods or services in question and does not create a likelihood of confusion with some other source’s goods or services.

So, for example, the term “Xerox” was a coined or fanciful term. It didn’t exist before. It didn’t have any particular meaning in English. It wasn’t being used by another producer of duplicating machines to identify their goods. So it was distinctive with respect to duplicating machines. But that’s not the only kind of term that can be distinctive.

I am writing this on an Apple computer. “Apple” is not a coined word. It has been used in the English language for centuries. It has an ordinary meaning. However, with respect to the goods—a computer—the word “apple” is arbitrary. It’s still distinctive for the goods in question. Thus, it can serve as a trademark for these goods.

“The Straight Dope,” is the trademark for the message board I’m posting this on. It’s neither a coined term or an arbitrary term. If you ask me, it’s a suggestive term. It is an ordinary phrase in the English language, and it has a meaning that is connected to its services—that is, a source of columns and discussions that seek to reveal truths. “Ask Cecil Adams. He’ll give you the straight dope.” It means that he’ll tell you the facts or truth as he sees it. Suggestive terms might start out being indistinctive, but after many years of use they might gather secondary meaning in the eyes of the public and thus acquire distinctiveness. Similarly: Microsoft is suggestive of “microcomputer software.” But through years of use, it has acquired distinctiveness to indicate a particular source of goods and services.

There is near me an association of artists and art educators that calls itself “The Art League.” Without context, this phrase seems descriptive of the services that association provides. Descriptive phrases are definitely not distinctive, but like suggestive terms, they can acquire distinctiveness through extensive use in commerce. Think about an international business machine company that calls itself “International Business Machines.” That phrase seems awfully descriptive. However, we have now accepted that it is now distinctive and can serve as a trademark for the company’s goods and services.

The one category of terms that can never be distinctive is generic terms. “Computer” can never be distinctive for computers, for example.

The question is not whether a term has existed prior to the trademark claimant’s use. The question is whether it’s distinctive or capable of becoming distinctive.

In front of me is a catalogue of fountain pens that fuels my fantasies. Some of the prominent brands are Mont Blanc, Waterman, Cross, Sheaffer, Parker, Pilot, Sailor. All of these terms are terms that existed before they became trademarks for writing instruments. One of them is the name of a prominent geographical feature. A couple of them are generic terms for certain jobs or professions or ordinary objects. Several of them are words that have served as family names for centuries. But all of them were capable of becoming distinctive as indicators for sources of fountain pens.

First of all, a title is not necessarily a trademark. A name of a series can be a trademark. “Star Wars” can be considered suggestive or descriptive of a story about warfare in space. “Star Trek” can be considered suggestive or descriptive of a story about traveling through space. There are uses of the phrases “star wars” and “star trek” in titles that might be descriptive or generic, and couldn’t be stopped by the trademark holders of those terms.

But let’s look at a word like “Dragon Slayer.” It’s not being used to identify goods in the nature of things or people that slay dragons. It’s not generic. That means there are theoretically some uses for which it could be distinctive or could acquire distinctiveness. If “Star Wars” and “Star Trek” can be distinctive for fictional stories about spacefaring people, then it’s perfectly conceivable that “Dragon Slayer” might be distinctive for fictional sword-and-sorcery fantasy stories.

Given this, a trademark examiner will look at the evidence. And note, that so far there has been no action yet on this application. However, it’s not inconceivable or ridiculous to take that application seriously.

72

Unless the “Dragon Slayer” guy starts suing or threatening to sue other parties left and right, I’ll reserve judgement.

73

That was an enlightening overview, Acsenray, but it looks like the ship has sailed on “Dragon Slayer” being distinctive.

74

How do you know this?

75

I call dibs on the DragonsLayer romance series!

76

Franchise titles don’t exist in a vacuum. There have been a score of different “Dragon Slayer” titles. You can’t be distinctive with something indistinct.

The 1981 movie Dragonslayer might have been able to become a franchise, but didn’t. Anyone trademarking the name in the 1980’s could have been seen as piggybacking on that movie’s reputation. Today, that was a long time ago, so not so much. In fact so much not that there are a score of books linked above using the name, apparently without Paramount or Disney saying boo about it.

If someone with the rights to that movie were reviving the name to do a series derivative of same, they might be able to trademark it. If the phrase had largely disappeared from high-fantasy usage and another party decided to revive it, that mght work. But now? On its face, it’s not distinctive.

77

Does this mean Cockeysville MD has to change it’s name?