We often are told not to judge a book by its cover. But we do. And that includes the title. Both title and cover are a reader’s first impression of our story. Both set the tone, suggest the genre, create subtext, and make allusions, all in hopes of luring a reader in to ultimately purchase the book.
With such marketing power, is it possible to legally protect a title? The short answer is: sometimes, through intellectual property laws.
But wait…is that you screaming: “your previous articles said titles couldn’t be copyright protected.” And you would be correct. Titles are typically too short to contain sufficient original expression to qualify for copyright protection (see Titles and the Law: Can I Call My Novel “The Great Gatsby”?). This is why you see identical titles from time-to-time. But a book title can, under certain circumstances, find protection via the trademark laws, making it one of a writer’s most valuable intellectual property assets.
What is a trademark?
Usually when we think of trademarks, brand name products come to mind, like Velcro, Vespa, or Valium. These types of trademarks are generally what we sprinkle through our creative works. But a trademark can also be a phrase, symbol, logo, design, or shape – like the Michelin Man made of tires, or the plume of a Hershey’s Kiss, or the catch phrase “Where’s the beef?” Just about anything qualifies as a trademark if it identifies a product or service in the marketplace and distinguishes the source of that product or service from other sources. Trademarks prohibit people from passing off goods and services as being associated with an established brand (like all those knock-off Rolex watches and Louis Vuitton bags for sale on the street corners of NYC). See my earlier Sidebar Saturdays article if you want more information about using trademarks in your fiction.
When can a book title receive trademark protection?
As a general rule, book titles do not meet the legal qualifications for trademark protection. According to the trademark office, single titles are consider inherently descriptive and generic, and not worthy of protection. To quote the United States Patent and Trademark Office (USPTO), a “title, or a portion of a title, of a single creative work must be refused registration under Sections 1, 2 and 45 of the Trademark Act….” The USPTO views a book title as a term used to describe a product (the book) and does not designate a single source of that book (the author or publisher) from among many other sources of books (other authors or publishers).
I know it sounds somewhat illogical, but the courts have been consistent when applying trademark law to book titles. If the purpose of a trademark is to identify and distinguish the goods or services of one particular seller from another, then a single title, under that framework, does not achieve that. According to the courts, a book title is only descriptive of the contents of the book itself, not an indicator of the source of the book.
How then does a title rise to the level of trademark protection? Through great success, wide distribution, or as part of a series. Think Harry Potter, Goosebumps, Idiot’s Guide, Chicken Soup, Twilight, Gone With The Wind, To Kill A Mockingbird, and the Hardy Boys. All of these titles (or key words in the titles) have reached a sense of notoriety, are identified with an author or a publisher, and have achieved secondary meaning in the marketplace. In short, books that have become brands operate as an identifier of the source of the books offered by that brand and thereby considered trademark protectable.
Why trademark a book title?
One word: BRAND! Stand-alone books or book series that reach a level of notoriety have the opportunity to create multiple merchandise licensing streams. That means a potential cash cow for authors (one that often usurps book revenues). And who would not want to ride that stream of income?
There are many byproducts that flow from best-selling books: merchandise (like clothing, action figures, etc.), lectures and courses, or film and television opportunities. A trademark will provide a writer with the necessary intellectual property for such licensing opportunities, plus a means to weed out all those pesky infringers who try to ride on the coattails of your success.
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