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cherubsmummy
04-27-2009, 08:21 AM
Not that I am disparaging lawyers, I almost was one myself.

I spotted this post (http://zenhabits.net/2009/04/feel-the-fear-and-do-it-anyway-or-the-privatization-of-the-english-language/#more-3153) from Zen Habits:


"Today I received an email from the lawyers of author Susan Jeffers, PhD., notifying me that I’d infringed on her trademark by inadvertently using the phrase “feel the fear and do it anyway” in my post last week, A Guide to Beating the Fears That Hold You Back (http://zenhabits.net/2009/04/a-guide-to-beating-the-fears-that-are-holding-you-back/)...."

Is a book title even a trademark?

Can anyone enlighten me as to whether the author has any hope of enforcing this?

Mac H.
04-27-2009, 08:44 AM
Is a book title even a trademark?

Can anyone enlighten me as to whether the author has any hope of enforcing this?Book titles CAN be trademarks.

Remember, though, that the lawyer wasn't threatening legal action. The lawyer wasn't insisting on anything. They were merely requesting that the phrase be used with the note '(R) Registered Trademark - Used with Permission'.

It is unenforceable because there is nothing to enforce - it is just a request.

It is partly due to a misunderstanding of trademark law - to enforce a trademark you have to show that you have prevented the trademark falling into the public domain. It is a misunderstanding, however, because the lawyer is basically claiming that Google should be sending an automatic letter to everyone on the planet who uses the word 'google' in a message board post. (Including this one)

The fact that the smartest legal team on the planet has decided that this would be a very bad idea doesn't deter low-rent lawyers from deciding that this is a sensible tactic.

It is a way lawyers get paid .. a simple Google alert on the phrase, then they get to bill the customer $50 per letter sent, even though it is an automatic response.

Mac
(OK : I made up the numbers here. But I guarantee they have billed the customer something)

cherubsmummy
04-27-2009, 09:19 AM
I can see the (misguided) logic in that. Thanks :)

benbradley
04-27-2009, 09:27 AM
Not that I am disparaging lawyers, I almost was one myself.

I spotted this post from Zen Habits:



Is a book title even a trademark?

Can anyone enlighten me as to whether the author has any hope of enforcing this?
I've never been to law school or antthing, but I know a little about IP law (Intellectual Property - copyrights, patents, trademarks - and there's a few other legal things such as trade dress, but that's not important now).

That book "Feel the fear and do it anyway" was a big seller, I even read it way back when (and no, it didn't change MY life), and a book title (or most any word or sequence of words when used for a specific product or service) CAN be a trademark simply by registering it at the trademark office. See http://uspto.gov I thnk a trademark costs in the hundreds of dollars to register (and then more to protect, paying lawyers to write nastygrams like this), but it's not much compared to what that book surely earned.


Her lawyers asked me to insert the (R) symbol after the phrase, in my post, and add this sentence: “This is the registered trademark of Susan Jeffers, Ph.D. and is used with her permission.”

Yeah. I’m not gonna do that.Oh my. I hope this Leo person (is that male or female?) has some free time to sit in court, or free money to pay an attorney or some such.


I find it unbelievable that a common phrase (that was used way before it was the title of any book) can be trademarked.
But it's true, and company lawyers have bullied their way onto even more territory than the law perhaps intended. They often don't NEED to prove infringement in court - if they bully enough, they can get the other party to believe they'll lose in court, so they back down rather than defend what may legitimately be an unrelated use of the word or phrase. Not that I would ever name a company that would stoop to these techniques.

As much as I hate to say it, this person may have awakened a Monster(R)[TM] (http://en.wikipedia.org/wiki/Monster_Cable)*

But still, even though the author and publisher may be on firm legal ground (at least in this case, much more so than the Monster cases I read about), I think it's just a little bit overbearing and mean-spirited to use the registered title to harass bloggers like this.

No doubt the author/publisher/attorney involved has the words Feel The Fear And Do It Anyway stuck in a Google Alerts, and will get an email linking to this thread as a mention of the title "Feel The Fear And Do It Anyway." Not that I'm trying to attract them here or anything...

The very word Monster(R)[TM] is a Registered Trademark of Monster Cable. Just ask just about any company that has ever had Monster in its company or product name. And yes, that company sued Disney over an animated film because the title was "Monsters, Inc." !!!

NeuroFizz
04-27-2009, 09:51 AM
Legal naivete here...how about editing the blog to read, "detect the fear and go for it anyway...? (or something similar--not the best grammar in the example since "it" seems to refer to "fear")

Do y'all remember those t-shirts that said things like,
Coed Naked Volleyball
Coed Naked (this or that)?

I wanted to have a t-shirt made up for my Neurophysiology class that said
"Coed Naked Neurophysiology," but the t-shirt guy wouldn't do it because the phrase "Coed Naked..." was protected. He was okay with "Coed Nude Neurophysiology" though.

And I mentioned this somewhere before at AW, but a friend at a tavern in the Pacific Northwest had t-shirts printed with a Nike-like swoosh and the words "Just Drink It." He received a cease-and-desist order from Nike lawyers. He did, indeed, stop selling them and destroyed what stock he had.

colealpaugh
04-27-2009, 10:04 AM
No doubt the author/publisher/attorney involved has the words Feel The Fear And Do It Anyway stuck in a Google Alerts, and will get an email linking to this thread as a mention of the title "Feel The Fear And Do It Anyway." Not that I'm trying to attract them here or anything...

Reminds me of the "firm" letter I received from the Wham-O company legal department demanding the use of an uppercase F when mentioning their client's wonderful toy, the Frisbee, in any future newspaper stories. I'm pretty sure it was in the AP Stylebook, so I had no excuse, but how the heck did they know? I was writing at a small daily in Western Massachusetts and the story wasn't carried on AP.

No Google Alerts, since it was 1986. Or was it 1984?:rolleyes:





frisbee







(Sorry, Mac, but I'm curious if they're still doing it:))

cherubsmummy
04-29-2009, 07:58 AM
Thanks for the thoughtful replies :) I found Leo's assertion that he'd never heard of the book credible, as I had heard the phrase but never heard of the book too. I had not realised that the book was so well known.

I was surprised to hear the term trademark being used with books. I am familiar with copyright, but didn't realise that trademarks were used in publishing. I guess there are businesses and careers built around the success of a publication (Men are from Mars, Women are from Venus springs to mind), and so trademarks do become relevant in publishing.

Definitely food for thought.

Thanks!

WriteKnight
04-29-2009, 08:25 AM
Yes, the lawyers HAVE to send out nastygrams - the law requires them to 'protect' the trademark, or lose it.

As nastygrams go - that one was really mild. More like a 'nudge'.

What will it cost you to abide by their request?

cherubsmummy
04-29-2009, 10:05 AM
Yes, the lawyers HAVE to send out nastygrams - the law requires them to 'protect' the trademark, or lose it.

As nastygrams go - that one was really mild. More like a 'nudge'.

I agree that it was pretty mild, and that the request they made was not an arduous one. Personally, I'd have complied, it's not like crediting someone in a blog post is hard :)


What will it cost you to abide by their request?

Do you think that I am the blogger in question? Believe me, in my humble blog, with its impressive readership of about 7 people, I am pedantic about citing sources. That's the one legacy I have from my university years.

Mac H.
04-29-2009, 10:26 AM
What will it cost you to abide by their request?That assumes that it abiding by the request is a good thing to do.

It probably isn't.

For example, you used the word 'nastygram' in your post. Up until 2001, this was a registered trademark.

If it was still a registered trademark, would you have gotten permission and edited your post to add the phrase '(R) Registered trademark used with permission' ?

Agreeing to ridiculous requests just encourages the bad behaviour.

An phrase (like 'feel the fear and do it anyway') can be registered as a mark of your product, but that doesn't mean that people who use that phrase in a conversation should feel obliged to edit their conversations to suit the trademark holder ... that isn't what trademarks are about.

It also isn't an issue of 'crediting' someone. Registering a phrase doesn't entitle you to 'credit' for it.

Mac