Author Threatens To Sue Book Reviewers Over Trademark Infringement 218
Nate the greatest writes "Do you know what is crazier than sending DMCA notices to a site like Lendink which doesn't host any content? It's when an author threatens to sue book reviewers over trademarks. Jazan Wild, a comics creator, is sending out threatening emails to any and all book blogs who review a recently published book called Carnival of Souls. The book was written by Melissa Marr, and it happens to use a title which Jazan Wild owns the registered trademark. He's also suing the publisher for trademark infringement, but HarperCollins is laughing it off. The book blog Bookalicious posted the email they got from Jazan. Needless to say they did not take down the review."
Next, chef sues recipe users ! (Score:5, Funny)
If DMCA can be applied to kitchen, maybe a chef who trademarked "salt" would sue anyone who dare to use salt in their cooking
Re:Next, chef sues recipe users ! (Score:5, Funny)
Re:Next, chef sues recipe users ! (Score:4, Funny)
I can only reply with one thing:
A big fucking WHOOOOOOOOOOOOOOOOOOSH!
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Admonished by an AC! However will I live?
*returns to SSRS 2005 (yes I know it's crap, no it's not my choice)*
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i didnt see the word racist in his post. was it some sort of easter egg and how do i unlock it?
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Re:Next, chef sues recipe users ! (Score:5, Informative)
2. IF someone were to trademark the word "salt", it would not apply to the use of salt but the use of the word "salt", for example in a recipe.
No, if there were a SALT mark, it would not apply to the word 'salt' where that word is used to mean an actual salt substance, e.g. common table salt. It would be generic in that context, and anyone could use it. OTOH, if you had a line of clothing called SALT, or SALT-brand brake pads for automobiles or something, that would be fine. If it helps, think of Apple, which has the APPLE mark for computers and consumer electronics, but has no power in the realm of fruit.
4. Such a trademark would not be granted. You have to show that the TM is synonymous with your brand and isn't already a commonly used term.
Again, as with APPLE for computers, you can use commonly used words as valid marks. You just can't use them in the context in which they're already commonly used. APPLE is a generic mark for fruit, and thus unprotectable; but it was arbitrary for computers, and thus quite strong.
3. If such a trademark were ever actually granted, and they did NOT file suit against someone else using it, that would amount to failure to protect the trademark, thus rendering it invalid. So they HAVE to sue (or at least issue cease and desist).
No, a mark holder does not have to file suit or even send off nasty letters when other people use the same thing. That's not required at all. So long as the relevant group of customers are not confused about the commonality of sources of goods and services labeled with the mark, there is no confusion, and no danger to the viability of the mark, and thus no need to take action to defend it lest it be lost.
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Well... (Score:4, Insightful)
I feel bad for the guy. He's been using the mark since 2004 for his business with his wife. That's their brand. Sending the C&D's to review sites was a mistake, but these obviously aren't going out from a lawyers office... he's trying to get it solved himself while Harper Collins gives him the finger.
I generally don't like C&D's, but I don't like a huge publisher just screwing this guy and his wife because they can, either.
Re:Well... (Score:5, Insightful)
As others have pointed out, "Carnival of Souls", even if trademarkable, is a pretty generic name and has been in use for FAR, FAR longer. Hell, I'm sure I've played at least one computer game where that was the name of a level, for instance.
It's like me trademarking "Emotional Rollercoaster" and then trying to enforce it. If he had a case, it's only against HarperCollins. And if he had a case, it would be expensive and difficult to win and would make him a lot of money from them playing off his established trademark.
I doubt he has a case. He has to enforce the trademark. But he does not have to enforce third-party reviews of the trademark (hell, that just adds to evidence of damages if anything else). But the second you sue HarperCollins, the first thing they will have done is work out if he had a case. Chances are that he just doesn't.
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Re:Well... (Score:5, Informative)
Movie: http://en.wikipedia.org/wiki/Carnival_of_souls [wikipedia.org] (1962)
KISS Album: http://en.wikipedia.org/wiki/Carnival_of_Souls:_The_Final_Sessions [wikipedia.org] (1996)
(some band I've never heard of): http://en.wikipedia.org/wiki/Carnival_of_Souls_(Miranda_Sex_Garden_album) [wikipedia.org] (2000)
I could go on, but my toast is burning.
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You forgot the Magic: The Gathering card "Carnival of Souls", which was printed and released in 1999.
http://magiccards.info/ud/en/55.html [magiccards.info]
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Maybe he didn't set is time machine correctly and he meant to go back to 1904?
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You find it baffling that a law that prevents people from naming a toxic cleaning solution the same name as a popular cola is a bad thing. Because thats what trademark exists for. To prevent confusion in salable items.
The first trademark statute, enacted in 1870, was struck down by the Supreme Court in The Trade-Mark Cases, 100 U.S. 82 (1879), for exceeding the powers granted by the patent and copyright clause of the Constitution. Congress responded with the Trademark Act of 1881, which was based on its Com
Re:Well... (Score:4, Informative)
The thing is, it's a trademark. Trademarks must be defended against any potential threat, or you risk losing them. It doesn't matter how strong his case is. In fact, I doubt he expects to win anything. He's just doing what he has to so no-one can say he didn't defend his trademark and just take it away from him later.
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Trademarks only have to be defended against uses that would dilute those marks. There's no reason to believe that reviewing a book bearing an infringing title would do anything to dilute the trademark in question, as almost any reviewer's use of the mark would be strictly nominative [wikipedia.org]. The case against Harper Collins is a different matter, assuming he has a valid trademark.
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But a single-book *title*? That's an overreach.
Re:Well... (Score:5, Interesting)
This guy seems to have a history of suing people for generic, carnival-themed horror. Here he is suing NBC for Heroes' having a carnival scene.
http://robot6.comicbookresources.com/2010/05/see-carnival-of-souls-comparisons-from-60-million-heroes-lawsuit/ [comicbookresources.com]
I'm can't say with 100% certainty that this Jazan Wild is filing frivolous lawsuits in hopes of getting some easy money, but I find the idea that he truly believes that he invented the macabre carnival idea, or that he coined the term "Carnival of Souls" hard to swallow. In addition, this guy be be completely nuts to think he can sue reviewers for copyright infringement. I say he's just fishing.
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I'm can't say with 100% certainty that this Jazan Wild is filing frivolous lawsuits in hopes of getting some easy money, but I find the idea that he truly believes that he invented the macabre carnival idea, or that he coined the term "Carnival of Souls" hard to swallow. In addition, this guy be be completely nuts to think he can sue reviewers for copyright infringement. I say he's just fishing.
In the discussion on the linked Bookalicious page, he has posted quite a bit. He seems to come across as a bit of a dickhead and doesn't get that he shouldn't have sent C&D letters to the reviewers; BUT he does at least seem to have a point with his disputes. He linked this PDF [jazanwild.com] in one of his posts, and I definitely would agree that on the face of it there are TOO many similarities for it all to be coincidence or "generic" macabre carnival stuff.
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I was thinking there were similarities too. Except it seemed similar to Ray Bradbury's 1962 novel "Something Wicked This Way Comes" especially the mirror maze. The house of mirrors scene storyboarded in that article reminded me of a scene in Disney's movie version that was released in 1983.
Coincidently (as some has pointed out), there was a B-movie called "Carnival of Souls" that was released in 1963. I haven't seen this movie, so I can't comment on if it was inspired by Ray Bradbury's novel.
In any case,
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Coincidently (as some has pointed out), there was a B-movie called "Carnival of Souls" that was released in 1963. I haven't seen this movie, so I can't comment on if it was inspired by Ray Bradbury's novel.
It isn't. I've seen it, and it's rather good for a $33K (1962 dollars) budget and first-time director. (He'd directed industrial films but this was his first and only feature.)
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Let's assume the Windows thing is true for a second.
I've just said Windows. Can I be sued for trademark infringement? No.
Windows is shit.
Now can I? No.
Windows is the biggest turd I've ever seen in my life.
Now can I? No.
But the person who infringes on the trademark - they can. This isn't about enforcing a trademark. It's about suing people for mentioning two words together, even when they've been told it's the name of a product (and if that IS a problem, then you need to sue the product manufacturer, n
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You may find this interesting and helpful to your argument.
http://en.wikipedia.org/wiki/Microsoft_v._Lindows [wikipedia.org]
Re:Well... (Score:4, Informative)
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The title of an individual work cannot be protected, but the title of a series can be. Apparently, that's what he's got.
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Re:Well... (Score:4, Insightful)
Reading a bit I would agree with the very un-/. opinion that this is not completely without merit.
The C&D's to review sites are plain wrong, but he may indeed have a valid claim to the trademark with the publisher or author.
It's not so much the title of a single book, which cannot be trademarked, but a title of a series of books, which can be trademarked.
Re:Well... (Score:5, Informative)
FTA: "Any sane person would have put a few minutes thought into the matter and realized that such an obvious phrase as Carnival of Souls would likely have been used as a title many times before. In fact, Bookfinder turned up at least a couple dozen different books, movies, TV episodes, and more – some of which dates back to 1962. And if you look inside books, Google says that it found the phrase no less than 5600 times (with some duplication, obviously)."
You do get that, right? A phrase used dozens of times as the title of books, movies, and TV episodes. If it was an original phrase that had never been used before, then his case might have some merit, but it's not, and he's just trolling.
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You do get that, right? A phrase used dozens of times as the title of books, movies, and TV episodes. If it was an original phrase that had never been used before, then his case might have some merit, but it's not, and he's just trolling.
I am no lawyer, but the difference here is the difference between a copyright, which you automatically get upon creation, and a trademark, which you have to apply for and pay the USPTO for.
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You can't go around trademarking terms already widely in use. It doesn't matter that it's not a copyright. It just means this guy should have his trademark challenged.
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You can't go around trademarking terms already widely in use. It doesn't matter that it's not a copyright. It just means this guy should have his trademark challenged.
AFAIK, you can pay your money to the USPTO, and they *might* issue a trademark, but it's up to you to sue and prove that you should have the trademark and should receive damages. So, yes, he might have a trademark on "Carnival of Souls", but he's unlikely to get any money for it.*
*Unless he's the Disney corporation. They get most anything they want regards trademark and copyright.
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I stand corrected. You can't go around trademarking terms widely in use and have your trademark hold up in court.
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Actually, unregistered trademarks exist, too, and are in effect simply by using a particular mark of trade. The "R" symbol is used to denote a registered trademark, while the "TM" symbol denotes an unregistered trademark. However, in the U.S., unregistered trademarks have limited protection.
Re:Well... (Score:4, Informative)
If it was an original phrase that had never been used before...
You're thinking of patents and prior art. Trademarks don't work that way - they belong to whoever registers them in specific categories.
Re:Well... (Score:5, Informative)
You do get that, right? A phrase used dozens of times as the title of books, movies, and TV episodes. If it was an original phrase that had never been used before, then his case might have some merit, but it's not, and he's just trolling.
No, that doesn't matter.
Trademarks don't care about originality; you can get protection for your mark even if you copied your mark from somewhere else.
Trademarks don't care about novelty; you can get protection for your mark even if the word or symbol that constitutes the mark already existed prior to your use of it as a mark.
You think that Apple or Nike invented the words they use as marks?
Read the trademark! (Score:5, Insightful)
He has not (and I think cannot) trademarked a comic title. He has trademarked a trademark for sources of downloadable media content. From a read of the grant, this does not cover books or reviews. He cannot landgrab his trademark to cover areas outside its applicability. Much as I personally dislike HarperCollins, I suspect that the response of their lawyers will be (correctly) the same as in the famous Arkell v Pressdram.
The USPTO search should be compulsory reading before commenting on these issues. It quickly shows whether someone has a case, may have a case, or doesn't understand how trademarks work. IANAL, this does not constitute legal advice or opinion etc., but in this case I suspect he falls into my last class.
Re:Read the trademark! (Score:5, Interesting)
He has not (and I think cannot) trademarked a comic title. He has trademarked a trademark for sources of downloadable media content. From a read of the grant, this does not cover books or reviews.
He has two registrations, the first of which most certainly does cover books.
http://tess2.uspto.gov/bin/showfield?f=doc&state=4008:m2hq6u.2.2 [uspto.gov]
http://tess2.uspto.gov/bin/showfield?f=doc&state=4008:m2hq6u.2.1 [uspto.gov]
I'd have thought the term already sufficiently generic enough to refuse these trademarks, let alone allow him to assert ownership over pretty much any fucking use of the phrase.
Pro tip for Kazan Wild: Did you know that the phrase "The Good Book" is yet to be registered as a trademark for religious multimedia content. Go grab it, and while you're on your way down to the the USPTO, don't bother looking before crossing any busy roads you encounter.
IC 016 (Score:3)
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You did notice that hey have two registrations of the mark in USPTO, one made in 2009 for 'Comic books; Graphic novels; Novels.' and second in 2011 for 'Downloadable motion pictures and television shows about drama, carnival themes, fantasy, supernatural themes; Motion picture films about drama, carnival themes, fantasy, supernatural themes; Motion picture films and films for television featuring children's entertainment'
Yes, see above (Score:3)
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Yup, bad comic!
Re:Read the trademark! (Score:5, Funny)
"This is Slashdot and nobody seems to have done a simple USPTO search!"
Because we use Google, not some weirdo search thing!
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I suspect that the response of their lawyers will be (correctly) the same as in the famous Arkell v Pressdram.
That predates me by just over a decade and so I had to look it up - Classic! http://www.nasw.org/users/nbauman/arkell.htm [nasw.org]
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Just because you can cite a warm, fuzzy human interest story does not mean trademarking two common words is any less fucked up.
Nor does it make his behavior, going after people who are reviewing a book that's not his any less fucked up.
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Go to the linked review site. He's staunchly defending his C&D letters against review blogs. He's a little shit that needs a crotch punch.
Assuming he's actually a thoughtful and decent guy, he appears to be roleplaying as a batshit crazy cunt of a man. Seems that this isn't his first stab at asserting ownership over things that existed long before he ever put crayon to paper.
http://robot6.comicbookresources.com/2010/05/see-carnival-of-souls-comparisons-from-60-million-heroes-lawsuit/ [comicbookresources.com]
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actually reading through it it's not that bad a complaint. i first looked at the pictures and just laughed but when i read the complaints under each picture it made a bit more sense. indivdually none of them really hold a lot. particularly 1b & 3a - there's not really any other angle to show those from & hall of mirrors is pretty much a staple in any carnival scene, specially a horror based one.
combining 7 & 9 or even 4a and 10 it seems reasonable that he could feel they stole his ideas. special
He's got nothing... (Score:5, Interesting)
His comic was put out in 2006, but the title/phrase has been in use since at least 1962.
He will have to show that people would somehow confuse this book, with his comic, which would be fairly hard.
Harper Collins did infringe his trademark (Score:2, Interesting)
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Re:Harper Collins did infringe his trademark (Score:5, Insightful)
You cannot copyright or trademark the titles of books.
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Well, not exactly; what you cannot do is use a single book title as an example of trademark usage, which is required to register it. You can, on the other hand, use a book title if it's part of a series or group of products.
Soon /. (Score:2, Insightful)
will only talk about patent trials, copyright trielas and related counter-trials. /. ! (aka SlashDotBang)
Which will make the site boring (and sued by almost all comment publishers).
Please, Moderators and meta-Moderators, quit from letting that crap to be published.
We need the ol' good
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you don't even have a UID.
although, i have seen comments from you since i first started reading this site. are you like the original user? before other users i guess they didn't need to number you.
You're (and not "your") wrong Mr. Anonymous! (Score:2)
said the guy with UID > 2e+6
Gal, sir!
"Because the first will be last!" said someone that got killed at once!
Sorry, but there is a valid point here (Score:2, Insightful)
Jazan holds the trademark over "Carnival of Souls", and he has a legal obligation to legally defend it or lose it.
It may seem silly to sue review sites, but the legal duty of a trademark holder is to actively defend illegitimate use of the trademark or risk dilution.
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"but the legal duty of a trademark holder is to actively defend illegitimate use of the trademark or risk dilution."
So if you don't defend someone who is using your trademark illegitimately, then there is a risk you will be diluted? That sounds a bit harsh.
Don't worry, we know what you meant:
"but the legal duty of a trademark holder is to actively defend against illegitimate use of the trademark or risk losing the trademark due to trademark dilution."
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It may seem silly to sue review sites, but the legal duty of a trademark holder is to actively defend illegitimate use of the trademark or risk dilution.
No but, just two separate sentences. It may seem silly to sue review sites. Period.
Actually it IS silly to sue review sites. There's never been a documented case anywhere that says when someone writes a review of something that it causes a trademark to be invalid. That notion is simply absurd as is the action of sending a C&D to the reviewers.
Jazan suing HarperCollins is understandable and defendable in this trademark case, but don't excuse all actions by this guy who I can only assume has sought some "
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Indeed, he's just defending his trademark. And in his pursuit of that I want to see him take on Gene Simmons over KISS using "Carnival of Souls" as an album title.
That would really be worth getting popcorn to watch.
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They didn't (Score:2)
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He'll still have to take them to court and get money out of them. Nobody is taking him serious, because he's only talking, not doing.
BTW, are you going to get sued too?
No, he doesn't have to take them to court if they respond to a cease and desist request and stop using it. He only has to take them to court if they refuse.
And no, he doesn't have to win any money from them, all he needs is a ruling saying his TM is valid. Even if the courts determine the alleged infringement was not actually infringing, as long as the TM is found to be valid it will still stand.
But if you do not take the proper actions against any case where it appears to be infringement of the TM, you los
The author's take on this (Score:5, Informative)
The author's take on this is further down in the comment section of Bookalicious. Quoting the key parts:
I want you to understand something. We contacted Ms. Marr and Harper Collins, way back in June and asked them to please respect our trademark. (...). My wife and I have built our company Carnival Comics over the last 10 years. In that time, we invested endless hours and tons of money building our brands. We have been very blessed. Carnival Of Souls, our series was the number 1 ebook on Blackberry for over a year. It was featured in the LA Times. (...)
So we protected our time and money and brand by registering a trademark for CARNIVAL OF SOULS. I started using the mark in commerce, way back in 2004. I applied for registration in 2009. and the USPTO granted me a mark.
The person you should be mad at is Harper Collins, who themselves own trademarks for book series. This is a big company, looking at someones lifetime of work and just taking it. We begged them to do the right thing. I had hoped Mrs. Marr would stand up for the rights of trademark owners, but she did not. Would you be angry at J.K. Rowling for stopping someone from putting out a HARRY POTTER series? She has a trademark as well.
See my point? I am not doing anything but trying to save my series from an out and out attack by a billion dollar corporation that feels they are above the law. I knew that if they released the Marr book, I would be the bad guy, for trying to defend my trademark. But what else can I do? Would J.K. sit back while someone else released another HARRY POTTER series. I think if you look at the facts in the case, you will see, that Harper Collins, should have not released a book and series, with a mark that they knew, was already out there.
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So what about Buffy The Vampire Slayer: Carnival of Souls?
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That's as maybe but I suspect J. K. Rowling might have run into a hitch if she'd titled her first novel Harry Potter, The Witch and The Wardrobe.
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Now you've got me imagining Harry and Hermione locked together in a closet. There might be a fanfic in this...
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Would you be angry at J.K. Rowling for stopping someone from putting out a HARRY POTTER series? She has a trademark as well.
No, I would not, because there wasn't already material published under that name. A quick google search will show that the title "Carnival of Souls" is the title of a Horror movie from 1962, which has had a remake as recently at 1998. It was also used in the title of a KISS album in the mid 90's.
Doing a little more digging I find a comic published on Amazon for the Kindle called "Jazan Wild's Carnival of Souls", with the TM attributed to both Carnival Comics AND Jazan Wild (one of the authors). A little mor
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If it's the title of a series, surely the smart thing would have been to disallow a trademark for "Book Title" and allow one for "Author's Name's Book Title". That would have allowed him sufficient coverage, and given other authors the ability to use the same title without confusion.
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Would you be angry at J.K. Rowling for stopping someone from putting out a HARRY POTTER series?
No. But I would be angry if she tried to stop somebody putting out review of a Harry Potter book based on the Harry Potter TM.
What a jerk.
Misleading headline (Score:3)
The headline implies that an author is suing the reviewers of his own book.
Prior art! (Score:2)
Carnival of Souls [wizards.com] is surely prior art!
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Doesn't matter how many people might have drawn a Glowing Arch to look like an M, only MacDonalds can use it as a Trademark once registered, at least in the Fast Food Industry.
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Correct, Cpt. Hook.
So how can I infringe a traded mark like "Carnival of Souls"?
I should sell books with that very same title and fairly similar plot. Which was not the case, AFAIK.
Or I should sell anything with the same mark.
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his immensely popular books
I think I've missed something, somehow!
Maybe it was the anonymous irony...
Needless to say? (Score:2)
Unfortunately these days it is not needless to say this...
Streisand effect (Score:3)
I read Carnival of Souls (Score:2)
I read Carnival of Souls. It was alright, I guess.
Sue me.
Just sayin...! (Score:2)
Carnival of Souls by Melissa Marr is GREAT! (Score:2)
It's a fantastic book, possibly the best I have never read.
I just wanted to let you all know that.
Carnival of Souls...Carnival of Souls...Carnival of Souls.
Not the shitty one by Jazan Wild, but the GREAT one by Melissa Marr.
By the way, I have a book coming out titled, "Jazan Wild".
Amazon Reviews (Score:2, Troll)
Re:this is beyond ridiculous (Score:5, Funny)
But I would agree to a patent on TYPING ALL CAPITALS.
Re:this is beyond ridiculous (Score:5, Funny)
Capitalization nazi, not punctuation nazi. And apparently also a semantics nazi.
Nazi should be capitalized.
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I respectfully disagree. "Nazi" has become a generic term, like "aspirin" or "hell" (in fact it's nearly as common as punctuation at this point, as Godwin observed).
Whoever owns the trademark for "nazi" will have to send out C&Ds if they want to prevent that, though they'd probably have to change it up a bit -- Microsoft Nazi(tm)*, anyone?
* (/. is stripping out the "tm" symbol from my post.)
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I respectfully disagree. "Nazi" has become a generic term, like "aspirin" or "hell"
The hitler you say!
So you're anti-semantic? (Score:5, Funny)
And apparently also a semantics nazi.
Wouldn't being a semantics nazi make you an anti-semantic?
Nein, das wäre eine antisemantics Nazi sein (Score:3)
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Wouldn't being a semantics nazi make you an anti-semantic?
I know I am. Their anti-virus solution sucks!
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Not according to the tome of all irrefutable wisdom that is Wikipedia: http://en.wikipedia.org/wiki/Punctuation [wikipedia.org] and http://en.wikipedia.org/wiki/Capitalization [wikipedia.org].
They describe two distinctly different concepts.
You are free - invited even - to correct me if I'm wrong.
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If you think that by using caps lock you can get me to do what you want... Well, that's where you're right. But - and I am only saying that because I care - there's a lot of decaffeinated brands on the market that are just as tasty as the real thing.
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We've secretly replaced the Enterprise's Dylithium Crystals with Foldgers Crystals. Let's see if they notice!
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so it's going nowhere fast?
Re:Morbo voice: "Trademarks do not work that way!" (Score:4, Insightful)
Reading comprehension. It's a skill you should learn.
He's not stopping reviews of HIS work. He's stopping reviews of someone else's work, because the Book's name infringes on his TradeMark.
Re:Does he only sue for negative reviews... (Score:5, Insightful)
probably related to the tone of his reply. had he said "the person suing is not the author of the book, they simply own a trademark of which they believe the book and anything related - e.g. reviews of the book infringe upon." he probably would have been upmodded.
in the world of argument facts are informative & insults detract from your point.
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