Re: Can you copywrite a proper name?

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Posted by M. Arthur Auslander on December 23, 1998 at 04:35:08:

In Reply to: Can you copywrite a proper name? posted by Jennifer McNitt on December 22, 1998 at 13:57:02:

: For several years, I have been using the alias 'Kerowyn' when accessing BBSs and when playing games and have created web site called "Kerowyn's Haven". The problem is that when I picked Kerowyn as an alias, it was the name of a character in the book "By the Sword" by Mercedies Lackey. At that time, had never seen this name mentioned before and I have not found the name in any child name books. This makes me believe the name was created by the author of the book.

: I have noticed several other people on the Internet using the name 'Kerowyn' as their alias or as part of their web site's name. I'm not acting as if I am the character portrayed in the book. I just liked the name when I saw it.

: My husband does not believe I'm breaking any laws. He says that the name "Wendy" didn't exist until the Peter Pan story was written. Now several people use the name "Wendy".

: What I need to know is if I breaking any type of copywrite law by using this name on my web site as the name of the site?

: Thank you for your help,

: Jen McNitt
A name cannot be copyrighted. There is a right to adopt a first name of another. One cannot adopt a name to confuse others. Elvis is not monopolized by Elvis Presley, witness Elvis Costello. Elvis on the other hand cannot be used in a way to suggest or be confused with Elvis Presley. A named person can adopt another name and or a nickname or even an assumed name as long as it is not a way of avoiding obligations. A name change can be done and used and can also be done formally by a legal name change procedure. A name may be adopted and then registered at a trademark or service mark, that includes first names whether or not it is a given name. At his moment I can't think of an adopted name used as a trademark. I rather think Famous Amos is an actual name. That a name comes out of a book that is copyrighted does not monopolize it. You have the right to use Kerowyn.
Your web page may be copyrighted. If the use of the name Kerowyn is used commercially as a service mark to identify the web page, then conceivably the name Kerowyn may be registered as a trademark or service mark depending on statutory compliance. If others are using Kerowyn as a trademark or a service mark, then it is a question as to who adopted the mark Kerowyn first. There could then be conflicts between trademarks or service marks. Even if there are exercisable common law or statutory law trademark or servicemark rights, your right to use the name you have adopted cannot be taken away from you as long as you do not use the name in conflict with the trademark or service mark of others.
M. Arthur Auslander
Auslander & Thomas
505 Eighth Avenue, New York, NY 10018
212-594-6900, fax 212-244-0028,
ELAINE's Workshop: Early Legal Advice Is Not Expensive

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