(Please read the introduction to this book before reading this. You can find that at… Introduction.)
The hardest part of writing a book on Trademark for Fiction Writers is where to start.
I finally figured out that I do need to start with the fact that I am not an attorney, and nothing in this book is legal advice. I’m just trying to help other fiction writers understand this concept of Trademark in Intellectual Property.
To do anything in this area, consult a real IP attorney. But my hope is after this book, the attorney won’t have to waste a lot of your money explaining basics to you.
Normally I would start with a chapter on the history of trademark law, but honestly, the history in this area means nothing, makes no difference at all, and is too stupid in many places to even bother with. So you all got lucky there.
Suffice to say, it started under Henry III, was put into a solid act in France in the mid 1800s, and the Trademarks Act in Great Britain in 1938 sort of set the modern standard, if there is such a thing. (There really isn’t.)
FICTION WRITERS NEED TO PAY ATTENTION TO COPYRIGHT
Copyright protection is automatic when you put something into a form. It is the form that is protected, not the words, the ideas, the characters, the plot, or the nifty writing structure. Only the form.
And it is automatic. Sure, you should do timely registration with the copyright office, but doing that or not does not affect your protection. It just comes into play with the remedies you can get in a court case if it comes to that.
And copyright protection on an IP has a set term that can not be altered unless you do something stupid by signing it away. (Traditional book writers, I’m looking at you.) The term of copyright protection is the author’s life plus 70 years in the United States. 50 years in some countries.
And the basics of copyright are fairly uniform throughout the world thanks to most countries signing onto the Berne Convention.
Where fiction writers fall down on understanding copyright is how licensing parts (slices of your copyright) can be done. And the value of the copyright itself. But that is the Magic Bakery book I wrote, and the workshop I did by the same name. Not dealing with it here at all.
However, at times I will compare trademark details with copyright, just to make sure I am being clear, assuming (falsely) that writers know copyright.
But, if you don’t know copyright, the basics of how to license copyright, and the protections and ranges of coverage of copyright, this book about trademark for writers will sound like Klingon (which is a trademarked, but not a copyright-protected language).
TRADEMARK BASIC NUMBER ONE
Trademark is an Intellectual Property (IP).
That’s right, it is a property, and thus has value. Sometimes a lot of value.
A trademark is established when someone uses a mark FIRST in a commercial or business setting.
“A trademark is created, and trademark ownership is established, when someone uses a name, logo, or other symbol to identify goods or services in the marketplace.”
Stephen Fishman, TRADEMARK, 11th Edition, Nolo Press
But wait, Dean, I thought you had to file for a trademark!?!?
Well, yes, you can do that, and I’ll get to that. But the ownership is determined by who uses the mark first. And it must be in some sort of commercial or business setting.
And there are a ton of other rules around that coming later, but that is the basic first rule to keep in mind.
First use wins.
TRADEMARK BASIC NUMBER TWO
There are two types of trademarks that we writers are concerned with. Marks that identify products and marks that identify services. There are two other types, but don’t worry about them.
Say you have a nifty logo for your publishing company. That is a service mark.
Say you have a nifty series name that identifies a lot of your books, that is a trademark.
But for all intents and purposes, the two terms are legally the same.
TRADEMARK BASIC NUMBER THREE
For those of us in the United States, there are four main areas of trademark law that we need to be concerned about. And here is where it starts to get really stupid.
1… Federal Law (Lanham Act)
2… State Laws (all different in all states)
3… Common law… (court decisions that apply)
4… International law.
Yes, all four apply and can be used to protect your work. Should all four be used? Up to you.
And those of you outside the United States, to get protection here, it is the same. Sorry.
I’ll deal with this a lot more in coming chapters.
TRADEMARK BASIC NUMBER FOUR
Under the Lanham Act in federal law, there are 45 different classes. You must pick a class in which to register your trademark.
I will deal with this in future chapters as well, as well as all the fun of registration.
TRADEMARK BASIC NUMBER FIVE
You must keep your trademark in use. Use it or lose it. If it is out of use, it is “abandoned” under the law.
About a billion questions exist in this area. Say you have a series and have trademarked the series name. How often do you have to do a new book or publish something new in the series or republish and recover old books or whatever to keep your trademark in active status?
And don’t forget certification and renewal periods. Forget one of those rules, you lose the trademark as well. And go back to Basic Three and give that some thought on rules when combined with certification and registration.
TRADEMARK BASIC NUMBER SIX
Unlike copyright, which is free, (plus you don’t have to defend, you don’t have to renew, and copyright lasts way, way past your death) trademarks are very expensive.
Legal fees, search fees (I will get into that), and filing fees all add up.
And trademarks (once you have one) take constant upkeep, renewals, and defense, which can often mean court cases to defend from someone using your trademark without even knowing they are doing so.
Yup, more money out of your pocket.
So copyright… Free protection and long term.
Trademark… Very expensive and short term.
And that is just a few of the very basics. Onward into some weeds.
But don’t run away yet, you writers who thought copyright was tough. You never know in this world of licenses, just when you might need to get a trademark. And as I said earlier, if you have read this short book, you might save yourself some money when you are sitting across from an IP attorney.
And if you are shaking your head right now, you should be. Trademark law and protection is nuts.