People often wonder that how to protect the name of their individual work, be it a book, song, software composition, or anything else? Protecting names can be challenging as copyright does not cover protections of names, titles, or short phrases. This leaves us with remedies that are provided by trademark law.
A great title can contribute tremendously to a book’s success. It can also create opportunities for multiple passive income streams from licensing the sale of book-related merchandise.
Can the name of an individual work be protected as a trademark?
The basic key to get a trade mark registered is that it must not be devoid of distinctive character. It must be capable of distinguishing the goods or services of a person from those of another person. So, can title of a book distinguish itself from that of a book of another publisher or can it acquire a distinctive character of the book.
In the case of Anne Frank – Fords’ Trade mark application reported in (2015) R.P.C. 31 (UK). The applicant applied for the registration of book title – “The Diary of Anne Frank” and “The Diary of Young Girl” for trade mark in class 16 (printed matter, periodicals, magazines, newspapers and books). However, these applications were rejected under relative and absolute grounds of refusal stating that the title does not possess distinctive character as it is descriptive of the goods and services.
However, the same question arose where the applicant, King Productions, Inc., had applied to register ROCK YOUR BODY as a trademark for DVDs (class 009) and books (class 016) in the field of “dance, exercise and fitness.” The USPTO refused to register the same and thus it was appealed in TTAB. The appeal board highlighted a principle stating that “It is equally settled law that the name of a series of works can be registered as a trade mark even though the title of a single work cannot. “the name for a series, at least while it is still being published, has a trade mark function in indicating that each book of the series comes from the same source as the others”
It was also stated that terms that are descriptive are generally considered weak from a trademark perspective. But if a descriptive term has “acquired distinctiveness,” it can be protected just like any other trademark. So we can say that if the title of your single work has become so distinctive that the consuming public will assume you to be the source of the “goods,” then it may be entitled to trademark protection.
Let us just say that, if the title of the book indicates the content of the book, then that title is considered to be descriptive and cannot be registered as trade mark provided that the title having a secondary meaning of goods as taken in a trade mark sense. Therefore, two conditions to be kept in mind for granting trade mark to the title of the book:
Thinking of such conditions, one thing comes to my mind is HARRY POTTER which embraces the above two key points to be registered as trade mark.
What comes in your mind??