ideagirl, you're making such a firm statement that I'd like to know what your qualifications are for making it, because it directly contradicts what I've seen in the book world. Are you a lawyer, and have you read the specifics of the law you're quoting?
I am an IP (intellectual property) lawyer, but you don't have to be an IP lawyer to know this. Generally it comes up in the basic IP class that's an elective in most/all law schools ("basic" in the sense that it just teaches introductory copyright, patent and trademark/trade dress law, and is a prerequisite for more advanced courses in each of those areas). It comes up in the basic class because it's so counterintuitive--"What, you don't necessarily have the right to use YOUR OWN NAME in your business?!?!?!" Nope, you don't--not if someone else got there first. Understanding that very counterintuitive concept helps you understand trademark in general.
While it's true that you can't have two businesses or companies with the same name, an author is not a business or company unless he or she is legally registered as one. And trademarks have to be registered to be protected.
No, they don't need to be registered. When I'm saying "trademark" here, I'm not just talking about federally registered trademarks--federal trademark law evolved from state-level common law legal doctrines, and those doctrines still exist--by which I mean, they still have legal force as to those areas that are not covered by federal trademark law. So the name or mark does not have to be registered anywhere, let alone federally, in order to be protected. Federal registration is far and away the
best protection, but it's not the
only protection the law provides. The basic state-level legal doctrine that includes these remaining state-level protections is "unfair competition," which I mention so you can google it. But I'm just using the term "trademark" as shorthand.
Nor do I think that a book with an author's name on it is in the same category under the law as a watch with a trademarked name on it.
You're right, it's not, because it's not a federally registered trademark--but it still is protected. Here's why: because the main point of trademark/unfair competition law is to protect consumers from being duped into thinking they're buying X when in fact they're buying Y. If you think you're buying a Stephen King book, when in fact you're buying a book by some completely different dude who also happens to be named Stephen King, there are laws that will protect you from that. You have the right not to waste your money on something that isn't what you reasonably think it is.
There are, and will continue to be, cases where two authors have the same name. That's not an infringement of copyright, unless it's done with intent to deceive the public.
Copyright's a completely separate doctrine (which, by the way, requires no intent to deceive). The issue here is trademark/unfair competition.
Two authors with the same name can coexist--but not if one of them got famous first. I'm simplifying a little, but basically this is the deal: it's the getting famous that gives the first author's name protection. If she weren't famous, the public wouldn't be deceived because they wouldn't have any idea who she was in the first place. People see a Stephen King book in the store and think, "Hey, I read
Carrie, that was cool--maybe I'll buy this one too!" That's because Stephen King is famous. Because he's famous, people associate his name with a particular kind and quality of novel. So if you publish novels under the same name, even if it's your real name, people will think the novels are by him--they will be deceived (intentionally or not). So, the law won't let that happen.