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Writing Forum | WritersDigest.com • Unusual problem? : Writers' Block Party • Page 2 • Writing Forum | WritersDigest.com
Page 2 of 2

Re: Unusual problem?

PostPosted: Sat May 20, 2017 12:31 am
by ostarella
Well, if a network is suing you, it's because they have a very good case showing that you've violated either copyright or trademark. But if an author has done due diligence (which, frankly, could be as little as googling the full character name you want to use), there should be no problem with violating either. Erego, no legitimate lawsuit. Not to mention that most large companies would realize demanding huge monetary damages from "the little guy" would do more PR harm than good. But again - if you don't want to be legitimately sued, do the research and don't use a trademarked name. It's not that hard.

Re: Unusual problem?

PostPosted: Sat May 20, 2017 11:10 am
by williamadams

Re: Unusual problem?

PostPosted: Sat May 20, 2017 2:17 pm
by ostarella
[quote="williamadams"]
if a name were trademarked they have to either put tm next to it or a circle_R to show it is a registered trademark
without that they can't win but they can still stop someone from using it further although not collect damages for misuse[/quote]

Just for clarity:

"The TM and SM symbols are used with unregistered marks: TM for trademarks, or marks that represent goods, and SM for service marks, or marks that represent services. The federal registration symbol, or ®, is reserved for marks registered in the U.S. Patent and Trademark Office."

"There is no requirement to use the TM or SM symbols and their use has no legal significance..."

"Use of the federal registration symbol, however, is regulated by federal law. You may only use the symbol with a federally registered mark and as applied to the goods and/or services listed in the registration. While you are not legally required to use the symbol, failure to use it is not without consequence. In an enforcement action, you will forfeit your right to recover lost profits and money damages unless you can prove the defendant had actual knowledge that your mark was registered prior to the infringing activity. This can be a very high burden and one unnecessary to bear."

"In written documents – articles, press releases, promotional materials, and the like -- it is only necessary to use a symbol with the first instance of the mark, or with the most prominent placement of the mark."

Quotes from intellectual property attorney Kelley Keller here: [url]http://webcache.googleusercontent.com/sites/undefined/undefined/undefined/undefined/undefined/?q=cache:8r25diM5KakJ:www.forbes.com%2Fsites%2Fwork-in-progress%2F2014%2F03%2F12%2Fwhen-and-how-do-i-have-to-use-trademark-symbols%2F%20&cd=1&hl=en&ct=clnk&gl=us#2e0c4e962834[/url]

Writers do need to double-check names for trademark, particularly if they're planning on self-publishing (don't think for a moment publishing companies neglect this), but not get paranoid about lawsuits. It can become just another obstacle to actually writing. And with that, I guess I would say we're pretty much finished.