question about titles and trademarks

I thought titles couldn't be copyrighted.

Anyway, on to the trademark issue. It's my understanding that a simple term (words only) can't be trademarked; there has to be an image. Think Coca-Cola, Nike. I ran into this a while ago when I had some trouble with an air conditioning guy. I ended up googling his company name to see if I could dig up anything on him, and found a huge company of the same name, in the same industry, but on the manufacturing side instead of the technician side. So I called them, and they were quite dismayed that some yokel was using their trademarked business name. Well, as it turned out, it wasn't trademark infringement (or whatever they call it...interference, I think) because the yokel was using a different symbol with the name, thereby differentiating it from the big company.

So, unless you take Whirly Girl's trademark image (the words and the picture, whether a certain typeface, symbol or whatever) and put it on the front of your book, you're okay.

I don't know if it's helpful at all, but I can tell you that naming a site or company -

anything R us

will get you a quick lawsuit from Toys R Us. They've taken a lot of people to court and won several cases. It seems to depend on whether or not the business owner has enough money to drag out a court case...and then it's up to the opinion of some judge who doesn't even understand the concept of trademarks and copyrights.

I think, when it comes down to it, a lot of this stuff is up to the opinion of some judge and there's no real way of telling whether or not you're actually breaking the law...since the law seems to be so easily interpreted in so many different ways.

Siddow said:

I thought titles couldn't be copyrighted.

Anyway, on to the trademark issue. It's my understanding that a simple term (words only) can't be trademarked; there has to be an image.

Click to expand...

Not always. You can trademark a word or a slogan without an image. For example, you can't slap the name Kodak on, say, a lawn mower even if you leave off the Kodak logo.

Here's a link to the basic definition of a trademark:

http://www.uspto.gov/web/offices/tac/doc/basic/trade_defin.htm

Personally, I'd just go with the title you have now and have the attorneys worry about the trademark issues later. Titles often change anyway. Good luck!

Let's go through this one by one: Whirly Girl is...

* an 80's song: titles cannot be copyrighted, so you're okay there.
* a term for female helicopter pilots: nobody owns that term (nor could they, since it's too short to copyright), so you're okay there.
* a trademarked jewelry line: trademarks cover only "confusingly similar" goods. You certainly couldn't sell jewelry under the same name without violating that trademark; you also might not be able to sell, say, hair ornaments (barrettes etc.), or other decorative accessories that people wear, because consumers might think the same company that makes the Whirly Girl jewelry also makes the decorative accessories. Thus the consumer could be confused; thus you can't use that name for your products. But you could sell totally unrelated goods that no reasonable consumer would think were from the same company; Whirly Girl car tires or camping equipment or helicopter/pilot accessories are too different from jewelry, so the consumer wouldn't be confused, so you could sell THOSE kinds of goods under that name. As for books? Same deal--no consumer would think your book came from the Whirly Girl jewelry company, so you can use it.
* a movie title: movie titles that are registered are registered with the MPAA, whose rules are NOT binding on everyone; they're only binding on signatories to the MPAA's agreement (which is to say, most major studios and a lot of independent movie producers). So this ONLY covers the use of the word or phrase AS A MOVIE TITLE, not as a book title. You can use it as a book title, but if you sell the film rights to the book, AND the 2006 movie you mentioned registered its title, then any movie eventually made from it will have to use a different title, because the studio that makes the movie of your book will probably be a signatory to the MPAA agreement.

You asked if it is legal to use a trademarked term as a book title, and the only example of a trademark you gave was the jewelry. As you can see from the answer above, the answer is yes. (Recall Steven King's book "From a Buick Eight"--a Buick Eight is a type of car; its name is trademarked. Not a problem for his book title; no consumer is going to think the novel was put out by Buick!). As for copyrights, technically you couldn't use something copyrighted as your book title (unless you were writing about the copyrighted thing, i.e. writing a book about someone else's book...)--but this is a total non-issue, since titles alone are not copyrightable; they're too short, so the legal issue would simply never come up. And as for movie-title registration, it only covers movies, not books. So there ya go.

Siddow said:

It's my understanding that a simple term (words only) can't be trademarked; there has to be an image. Think Coca-Cola, Nike. I ran into this a while ago when I had some trouble with an air conditioning guy. I ended up googling his company name to see if I could dig up anything on him, and found a huge company of the same name, in the same industry, but on the manufacturing side instead of the technician side. So I called them, and they were quite dismayed that some yokel was using their trademarked business name. Well, as it turned out, it wasn't trademark infringement (or whatever they call it...interference, I think) because the yokel was using a different symbol with the name, thereby differentiating it from the big company.

Click to expand...

Words can indeed be trademarked. If the situation you described above wasn't trademark infringement, it would've been for some other reason (e.g. maybe the big manufacturing company hadn't yet claimed federal trademark protection for its business name, so it only "owned" that name locally or regionally, in the state or states it operated in, and the local yokel was operating someplace else).