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."
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.
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.
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
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.
Re:Harper Collins did infringe his trademark (Score:5, Insightful)
You cannot copyright or trademark the titles of books.
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:Sorry, but there is a valid point here (Score:2, Insightful)
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 lose it.
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:The author's take on this (Score:3, Insightful)
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 more searching, and look what I find: This is the same guy who tried to sue NBC over the plotline of Heroes, alleging it was ripped off from.... you guessed it- his comic books series "Jazan Wild's Carnival of Souls". Huh, imagine that.
Now, "Jazan Wild" is actually a pen-name for a Mr. Jason Barnes, just to avoid confusion if you're looking into this as well.
It's also the name of a (fanfic) novel based on the Buffy the Vampire Slayer series, published in 2006.
It's also the name of a card from the card game "Magic: The Gathering" which was released in 1999.
It's also the name of a mission in the Funcom MMO "The Secret World".
It's also the name of a song by a group called "Jedi Mind Tricks".
It's also the title of a bootleg CD of a Jane's Addiction show from 1989.
If this was targeted at another comic or graphic novel, then yes I could see him trying to enforce his TM. But it's already been used as the prominent title for both a movie and various types of music, so he can't try to apply it to any form of media or entertainment. And as for a book, since he still hasn't filed a suit or issued a C&D over the Buffy book, all Harper Collins has to do is say "Well, here's a list of book titles published prior to the TM, and another list of books published after the TM was granted which they have not attempted to defend." In short, Mr. Barnes will be lucky to walk away from this with his TM intact, let alone get anything out of HC.
Citations:
http://en.wikipedia.org/wiki/Carnival_of_Souls_%28Buffy_novel%29
http://www.courthousenews.com/2010/05/17/27327.htm
http://robot6.comicbookresources.com/2010/05/see-carnival-of-souls-comparisons-from-60-million-heroes-lawsuit/
http://en.wikipedia.org/wiki/Carnival_of_Souls:_The_Final_Sessions
http://janesaddiction.org/bootography/janes-addiction/cd/carnival-of-souls/
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.