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Copyright & Patents/Does copyright and Intellectual Property extend to quotes and various words?

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QUESTION: Hi Gerald,

As a hobby of mine, I do leatherworking, and sell some of my bracelets online. I am a fan of many shows and books out there, and I reference a few of them in my works. I am careful to stay away from certain things, like characters names and the like.

Recently I was asked to take a couple bracelets down for violating intellectual property and copyright, but I am wondering if this is even a legal claim or a scare tactic.

I found several sources on copyright stating that slogans, names, titles, short phrases, catch phrases, and the like cannot fall under copyright. Those would have to be trademarked to be protected.

So I'll give you an example (not what I was actually called out on but just an example).

Let's say they were Star Wars bracelets (they weren't, again, just an example since it's probably more well known than what I had).
One said: Rebel
One said: I am your father
One said: Stormtrooper

Now, in reality, my bracelets were similar. One used a common word, like "rebel," one used a catch phrase, "I am your father," and one used the classification of a person in the show, "stormtrooper." (it was actually a lot less "specific" than stormtrooper but it was the best I could come up with).

Now, I'm wondering... just because I referenced the name of the show in my bracelet's description and title, "Great for any Star Wars fan in your life! Inspired by Star Wars" am I really violating intellectual property rights? Especially on the one bracelet that said "rebel." It's a public domain word, it's not trademarked, can they really have a legal standing on this at all?

I did find one case where mugs with "E.T. Phone Home" inscribed on them were considered to be copyright infringement, since they clearly referenced "E.T." which I believe is copyrighted or trademarked. If all my words are in the legal domain, wouldn't that fall under copyright not being granted to short phrases?

Thank you for your time and help!

ANSWER: Sarah,

This is an excellent question - and not easy to answer so bear with me.

It's hard to believe that several of these names are protected in the U.S. Trademark Office.

First of all, for trademarks, there is protection at common law (no registration anywhere) but the user of the mark needs to designate that the mark is considered a trademark by placing a "TM" next to the mark.

The user of the mark can also obtain a state registration for the mark, if the mark is to be used on goods or services marketed in one state.  Again, the mark must be designated with a "TM" to show that the mark is considered a trademark (goods) or a service mark (to designate services).

If the mark is to be used in "interstate commerce" (commerce between or among several states), the federal government has jurisdiction, and the mark can be registered with the U.S. Trademark Office.  You can search federal trademark applications/registrations by going to

http://tess2.uspto.gov/bin/gate.exe?f=tess&state=4004:r61rjy.1.1

I recommend, selecting the second search option "Word and/or Design Mark Search (Structured)".

You will have to play around with this a bit, but if, for example, you search the word "Rebel" and "Full Mark", you will see that there have been 132 registrations/applications for this trademark.  Once the mark has a federal registration, the "TM" is replaced by an "encircled R". Some of these are no longer in use and are designated "dead".

If you own a trademark, you need to select the class of goods that you will be using the mark on.  There are currently 35 international trademark classes and 10 additional service mark classes.

You can find a list of the international trademark classes with a short definition of each at
http://www.framelegal.com/trademarks/trademark-classes.aspx

If an entity believes that they own rights to a mark in a class, the entity needs to monitor the use of the mark.  If I open a restaurant down the street and call it McDonalds, you can bet that I will be served with legal papers within a few hours of the opening.

Sarah, people take courses and devote their careers to trademark law, so this is but a short summary.

If you have further questions, you might try some Internet research, but you should seek the advice of legal counsel before proceeding.

Sarah, I hope this helps and good luck with your business.

Best regards,

  --Gerald R. Black
    Attorney and Counselor
    http://www.usipattorney.com



---------- FOLLOW-UP ----------

QUESTION: Thanks for your answer! That helps. I will look there! As far as I know though, this particular use has never been trademarked, at least not with the company who is asking me to remove my content. It's just merely referencing their show, but they are demanding I not sell them, even with no trademark. I will double check, though, but I have never seen one thing with these words and TM next to them or the R in a circle.

About the copyright, am I correct in assuming that short phrases and slogans and catch phrases are not subject to protection? (Leaving out trademark law)

Thank you for your response and I will definitely look into this.

Answer
Sarah,

Generally, you cannot copyright a word.

I tried to copyright an advertising slogan once, and was told that advertising slogans could not be protected by copyright.

I also checked "stormtrooper" and the word has been trademarked.

Good luck, Sarah.

Best regards,

 --Gerald R. Black
   Attorney and Counselor
   http://www.usipattorney.com

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Gerald R. Black

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Intellectual Property Patents Global Patent Rights PCT Technology Transfer Copyrights Trademarks

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Registered to practice before the U.S. Patent Office Admitted to Practice Law in Michigan, California, and Ohio

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Capital University Law School - JD University of Cincinnati - BSME

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