Wednesday, July 25, 2007

Duplicate book, movie, television program names


Once again, in recent days various individuals have had questions about whether the same titles can be used in multiple books or multiple movies or television programs or series, websites (particularly domain names), or combinations thereof.

I am not an attorney; I am (for the purposes of these blogs) a researcher and writer. If the visitor has a specific question, it’s always safest to contact an intellectual property attorney in the same state (or country; overseas some rules can be different).

But, of course, I have watched this issue for years with respect to my own books and websites. I can share what the overwhelming majority of sources say.

Generally, the answer is yes. It is all right for more than one book to have the same title, or more than one movie, or a book and movie with different subject matter. Titles cannot be copyrighted. (Here is the Copyright Office link). A title of a series of books (like “… for Dummies”) that is marketed as a brand can be trademarked, so someone else who tries to release a book or movie with the same name may run into trouble.

It is common for movies to have different titles in different countries, and sometimes translations from one language to another are not “literal.” It is also common for unrelated movies to have the same name. Just browse through imdb. A good recent example is “Sunshine.” When movies are presented in a series with sequels (like “Harry Potter” or “Die Hard”) the series title is probably viewed as a brand, inasmuch as most large movie studios regard these series as cash cows and are sensitive to the possibility that the public interest in the film as a brand would be diluted. With a television series, it is not as clear, but probably in many cases a television series itself (“Smallville”) is like a brand. However, a work (from a different source) with the same name that had existed before the series came into being should be all right.

(Note: Sec. 2, (1) reads "...who, at any time after the owner's mark has become famous, commences use of the mark or trade name in commerce that is likely to cause blurring by dilution by tarnishment..." See the posting from June 7 for the link to the text.)

Lawyers have been concerned that the “likelihood” of dilution (and the ambiguities in some of the terminology of the new law) could be an excuse for large companies to go after small fry, but not when the smaller works were in circulation first.

Here is a USPTO trademark office link: (look at 4c.) Here is another typical link on using trademarked names as book titles.

Saturday, July 14, 2007

Business 2.0 on domainers


The June 2007 issue of Business 2.0 had a startling cover story, “The Man Who Owns the Internet”. That’s owns, not invents, so he’s not Al Gore. The title continues “Kevin Ham is the most powerful dotcom mogul you’ve never heard of. Here’s how the master of Web domains built at $300 million empire.” The article, on p. 69, is by Paul Sloan, and illustrated by Michael Llewellyn. The link is here:

A blog by Jay Westerdal claims that Ham’s fortune is even greater than reported in the mag, link here:

Ham is a medical doctor, living in Vancouver (aka Smallville, of course). But rather than medicine (this is single payer Canada, after all, in Michael Moore land) he decided he could make his fortune on the domain name business – as a big league “domainer.” This is all the software and infrastructure that generates synonym spelling names (parked domains) with advertising links. The article talks about Cameroon, the tld .cm, and the master site agoga.com. The article mentions some other moguls, like Yun Ye, Garry Chernoof, Craig Lovik, and Scott Day.

One operator even did a .org park on my doaskdotell.com. I ignored it. It does seem to me that this sort of thing goes against the “good faith” practices of ICANN rules and might run into issues with the revised trademark law (going offshore makes it complicated). The article indicates that Lam kept a low profile because of the ambiguities. Sometimes there is a tradeoff between making money and enjoying the limelight, I guess.

The blogosphere, not being particularly moralistic, tends to like what he did. It’s innovative, and the money he makes will eventually do good. I don’t pass judgment. I’ve had people ask me about this, and no, I wouldn’t want to. I’d rather create content and be publicly known for it and be read about in literature anthologies a half century after I’m gone in high school English (not high school musicals with Zac Efron clones).

Until August 2005 I had a lot of my content on hppub.com, which was supposed to be contraction for "High Productivity Publishing." Because I no longer was really selling books myself, I didn't think it was kosher to keep a name like this, and moved everything to doaskdotell.com, based on the title of my first 1997 book. A casino company took it over. A woman called me in a couple weeks and asked me to sign it over (I thought if I didn't pay Network Solutions for the renewal, I had no rights) and offered $50 at Paypal, but I took no money, as I had relinquished the domain.

Monday, July 02, 2007

Trademark Dilution would apply to spammers


I repeatedly get unsolicited emails, cleverly set up, from banks claiming all kinds of things: that my online banking is suspended, that I need to do a system test, that I have overdue bills, etc. Of course, we all know that this is “social engineering” and that these are the well known phishing scams. If one follows the hyperlink on such an email, one finds a link other than the bank, an IP address that, if looked up on WHOIS, tracks to overseas, often China.

These emails have the bank trademarks, with sender addresses cleverly spoofed to look like they come from the bank. Of course, as noted earlier, this argues for replacing email with protocol safer than SMTP, but the main point here is how the spammers use the bank trademarks, and format their pages to look exactly like the banks’ legitimate emails.

Bank of America seems to be the main target. The spammers love to reproduce its red, white and blue trademark.

It strikes me that this kind of activity provides a legitimate use of the Trademark Dilution Revision Act as passed. A bank can now say that it does not have to prove financial harm yet in order to claim tarnishment or dilution, which this kind of criminal activity obviously represents. But legal action may be of little value overseas.