Posted by M Arthur Auslander on December 23, 1998 at 14:04:41:
In Reply to: Re: Re: Can you copywrite a proper name? posted by Jennifer McNitt on December 23, 1998 at 11:12:55:
: : A name cannot be copyrighted.
: Where can I find documentation for this? I would like to have it on file. I did send a letter to the company that published the book that Kerowyn was in, and they were not willing to give me their "go ahead" to use the character's name on my web site. I unfortunately can not find their reply any more due to e-mail software changes, but most of what they said suggested that there would be problems if someone tried to use a name like "Captain Kurt's Haven" or "Luke Skywalker's Haven" and that using the name "Kerowyn's Haven" would be in the same catagory.
: : 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.
: How can I make sure it is not trademarked? Is there an online resource for this? I have access to an online legal database if needed.
: If everything checks out that the name is not trademarked, it sounds as if it is then OK to keep the copyright notice I have been using. It is:
: (c) 1998 Haven Online Services, Inc.
: Haven Online Services is the name of a new web design company my husband and myself own.
: Thanks,
: Jen McNitt
The copyright on the web page will not protect the name. If you are using a name you found in a book, it genrally can be used. If you want to use it attributed to the character in a book then it may be wise to get permission for which you are likely going to have to pay. A name cannot be used to deceptively suggest someting that it is not. I would have to do legal research for instance to check the availability of well know literary characters, like a Hobbit. There may be a grey area if the name is well know fanciful and associated with a single source. Mickey Mouse is well protected by Disney and so well know that there is no way it could be used without paying. I do trademark searching but I charge. Even if you could search there are subtleties that may be missed by a lay person.
M. Arthur Auslander
Auslander & Thomas
505 Eighth Avenue, New York, NY 10018
212-594-6900, fax 212-244-0028, aus@auslander.com
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