Trademark Silliness
Jane Friedman Post…
I have gotten numbers of questions about this post. Basically what happened is that Jane Freedman, one of the great traditional publishing apologists in her Hot Sheet, had some of her own books up indie on Amazon and someone copied her name and the titles of the books and did some poor AI books and put them up for sale.
The books were put up under another account, so any sales would go to the other account. Jane wrote Amazon and asked them to be taken down.
Amazon wrote back and asked if her name was a licensed trademark. Jane said her name was not trademarked under the Lanham Act, so Amazon declined to take the AI crap books down. Jane eventually got the books taken down in other ways. And, of course, other bookstores had no issue taking them down at once. Just Amazon asked that question.
And now every beginning writer is panicked. As expected.
Now Jane has been around making money with her name for a very long time. Her name is an okay mark in trademark standards, not great, but when associated with publishing and fiction, at least moderately distinctive. And she was doing business under that name far, far longer than the scammer. She wins.
Now I am not a lawyer and would never think of giving legal advice here. And I do know of a lot of big-name authors who have trademarked their names. But for beginning writers, just starting to do business under your name, I personally see no reason to get a trademark.
Trademark in general consists of how long you have been doing business, what area of trademarks you are doing business, and how strong the mark is you are doing business under. (not legal advice, just my understanding)
Trademark to my layman’s understanding for writers is designed for a number of reasons. To protect long-term businesses from such things as Jane went through (even though she still won), to give notice to others who think the name they just thought up is original, and to make lawyers a shit-load of money. (Mostly the latter.)
So my layman’s advice to beginning writers is to not worry about trademarking your name. You have nothing to take yet. You have no business that is worth protecting yet. Longer term-professionals, go get a lawyer (a good one who specializes in IP) and ask their advice. Most lawyers will say don’t bother until a problem comes up, some hungry for money will take your money and trademark your name under the Lanham act.
And that is when your real problems begin because there is a ton of requirements you must follow to keep that trademark active once you register it. And more money to be paid out regularly. And god help you if you miss a renewal.
None of this is legal advice. If you are so afraid that someone will take your precious business name, then by all means go ahead and spend the money and get a trademark on your business name. But first understand copyright law.
And second, remember that with trademark, first into business in a certain area with a regular business income, wins against someone coming later and trying to use the same mark. Even if you are not yet registered with that mark.
But talk to an IP attorney if this is keeping you up at nights because everything I said here is general and not legal advice. Just my opinion. Including the talking to a lawyer part.
(Warning to lawyers coming here to comment or take me to task… Please do not lecture like this is a second year law class. Keep comments general. Many in this audience are learning and just starting off. Thanks!)
6 Comments
Amy
Great to have your comments, Dean.
Minor thing – the name of this author is ‘Friedman’, not ‘Freedman’.
T Thorn Coyle
I posted an article about the situation to let folks know there was a new scam in town. In one group, the number of people suggesting that authors trademark their names gobsmacked me.
Glad you wrote about this.
C.E. Petit
Just a general lawyerly comment on trademarking names:
A natural person name is not registrable as a trademark under US law by that natural person. And Amazon (among others) counts on that.
Here’s an example of doing it “correctly”: Harlan Ellison® was/is a mark registered by The Kilimanjaro Corporation. That is, the registered-and-in-good-standing IP holding business entity (controlled by the author) registered the authorial name as a mark. There are, of course, other formalities and procedures to follow, but this is the basic one, and gets around the “natural person cannot register his/her/their legal name as a mark” restriction.
Pseudonyms, stage names, etc. are all different, because they are initially commercial identifiers, not legal names. (A corporate name is a pseudonym under this reasoning.) Thus, Our Gracious Host’s lovely spouse could register her “Kristine Grayson” pseudonym for herself, as a natural person, because it’s not her legal name or a legally cognizable short form of it. Now if you’re getting the impression that this is hypertechnical foofery drawn from a couple centuries back, when Real People (when they bothered to sully themselves with “money” and “commerce” and such at all) were known both as “Arthur Wellesley” and “[the Duke of] Wellington,” and you’re then asking the question “Why should that matter two hundred years later in a nation that as part of its fundamental law bars titles of nobility,” you might be on to something… in the grand, does-this-make-sense scheme of things. But not as to the legal landscape, which is not required to make sense but is still The Law.
Of course, what Amazon did/refused to do was most emphatically not The Law. See, e.g., Berne Convention Article 6bis; 15 U.S.C. § 54; Rev. Cod. Wn. ch. 19.77. But that’s for another time.
dwsmith
C.E., Thank you!! Very much appreciated.
Joanna Penn
Thanks, Dean — and what makes this even more interesting name-wise is that there are 2 Jane Friedmans in publishing — and the BBC introduced Jane here in the UK as the wrong one.
Jane Friedman, ex-CEO of Harper Collins – https://en.wikipedia.org/wiki/Jane_Friedman
Here’s a picture so you can see she’s a different person: https://publishingperspectives.com/2015/04/jane-friedman-says-open-road-is-like-knopf-in-the-70s/
and Jane Friedman, publishing commentator who is the subject of this discussion
https://janefriedman.com/about/
Also, the books published under Jane’s name were not copies of her books and titles, they were new books with new titles that were not hers, linked to her account on Amazon.
I’ve had this happen to me several times.
The issue is someone publishing under the name of an established author and then getting it linked on their Amazon Author page so a reader might find it and buy that.
I’ve had books put into KU under Joanna Penn which are not my books, although sometimes they are my title and covers with another book in — and I have no books in KU which is how I found them.
The much bigger issue is what Amazon allows to be linked to your Author Page — nothing to do with copyright or trademarks, just a tech issue of what they allow. So authors need to keep an eye on that and ask for books to be unlinked from their name.
Thanks as ever for all you do!
Jo
dwsmith
Thanks for making that clear, Joanna. Really appreciate it.