Legal Question in Intellectual Property in California
I am preparing to publish a novel in which there is a prominent and trusted business. If the book becomes popular, I can imagine someone wishing to use the name of that business as their own business name. (This would be similar to someone naming a school "Hogwarts" after the school of the same name in the Harry Potter books.) I wish to prevent this from happening, as I believe that people could be taken advantage of in this way.
My question is, does use of such a name in a novel qualify as "use in commerce on or in connection with � goods or services" under 37 C.F.R. ��2.34?
Thank you very much for whatever guidance you can provide.
2 Answers from Attorneys
I would say no, use in a novel would not meet the 37 CFR 2.34 use in commerce definition. Further, reliance upon trademark law would be imperfect even if this were "use in commerce," because trademark protection is highly specific (to categories of goods or services). For example, the phrase "Purple Passion" could be trademarked as a name for a lipstick, but that would not prevent someone else from using the same name for a paint color, or for Zinfandel.
I would agree with the attorney above that you will likely not be able to qualify the use of the mark within the novel as a "use i commerce." However, what I would suggest is you register the copyright to your book.
If and when the book becomes popular and if some merchandising revenue can be developed using your book, you could use the name of this fictional business on those merchandise and apply for trademark based on that use. This is what they did to Hogwarts and it has worked well for those involved.
Should you need assistance with any of these, feel free to contact us or an intellectual property attorney in your area.
Kind regards,
Jim Betinol
424-229-2560
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
