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[mlfveer]

I am curious as to how US trademark law deals with using common words and names. In particular, I am interested in using a single word or name for a comic book.

I don't want to trademark the character's name, I simply want to use a name that does two things: one) doesn't infringe on an existing trademark, two) I want to prevent someone else from trademarking the name of the character (hence that is why I am interested in using a 'public domain' word or name). My interest lies only with owning the copyright to the work, not trademarks of any kind. I am figuring I can do this because, I believe, that if my original character's likeness is first copyrighted then I can feel safe that someone else won't successfully trademark it because the copyright would trump the trademark effort... in other words, the likeness of my character would be covered by copyright. Since the name of the comic (and the character) is public domain, I can also feel sure that the name is not in danger of being trademarked.

I hope I am making sense. In terms of the kinds of words or names I want to use, I am looking into using a SINGLE word for the character: like "Dragon" or "Guard" or some sort of myth-based name like "Perseus" or "Zeus." In a nutshell, I am trying to avoid any form of trademark because this effort is strictly non-commercial in nature.

Any guidance would be appreciated!

Thanks!

[JSonnabend]

There is no such thing as a "common word" or a "generic term" per se.  Words can only be generic or common in connection with certain things.  For example, "Chair" is a generic name for, well, a chair, but not for ditch digging services or jelly beans.

With that in mind, if you want to name a dragon character in your book, "Dragon", that would be generic (in the trademark sense, at least).  That may be a good thing considering your concerns, but bad from a merchandising perspective.

As for you thoughts on copyright "trumping" trademark, that's not technically accurate but practical speaking correct.  If someone copies aspects of your characters covered by copyright, then they've infringed and you have a cause of action.  Make sure to register your copyrights as soon as it's feasible.

- Jeff

[mlfveer]

As always, thank you for the feedback!

Now you know that I am not a lawyer. :-)

I do find it kind of troubling that words I would consider generic can be trademarked. Not too long ago I recall seeing the word 'verb' trademarked by some outfit.

Unfortunately for me (and others), my chosen area of interest, comic books, is a minefield in terms of trademarks. Marvel alone claims to own over 5,000 characters.

Thanks!!!

[Isaac]

I do find it kind of troubling that words I would consider generic can be trademarked. Not too long ago I recall seeing the word 'verb' trademarked by some outfit.

All words are generic in some context.  

[JSonnabend]

All words are generic in some context.  

Actually, I don't think that's true (depending on your definition of "word" I suppose).  Fanciful words (i.e, coined words) would not be generic in any context, at least not initially.  What's a "Kodak" or a "Xerox"?

- Jeff

[mlfveer]

I realize that this is a fairly complex issue, and I appreciate the great feedback I receive in these forums.

Just for the heck of it, here is the VERB TM I mentioned earlier:

http://www.cdc.gov/youthcampaign/

[Miguel]

Hi all,

how could a word like "MyGym" get approved as a mark for a fitness product? The word "My" is very common and "Gym" already generic with fitness. What are your thoughts?

Miguel

[JSonnabend]

The fact that the word "My" is "very common" is meaningless.  The word "apple" is common, too, but it's a valid trademark for computer related products, is it not?

The pertinent inquiry is whether  "my gym" is the generic name of the product it covers and/or merely descriptive of that thing.  While "gym" likely is generic for gym equipment, I'm not sure the phrase "my gym" is.

You can look at the registration at issue and see if it's on the principle or supplemental register, whether it's a section 2(f) based registration, and whether "gym" has been disclaimed.  That will help you understand the nature of the mark, at least as far as the PTO is concerned.

- Jeff

[Isaac]

If the phrase in question was "Bob's Gym" or "Gold's Gym"  I don't think anybody would suggest that Bob or Gold were too common to be used as part of a trademark even if they don't know which Bob is being referred to.

MyGym is on the primary register.