August 31, 2011
Avoiding a Trademark Infringement Lawsuit is SO Easy!
Imagine you just finished your new book. You came up with the perfect title years ago, when you first started thinking about writing it. You've paid a cover designer to design the perfect cover and you've paid your POD publisher to design the interior. You spent weeks or months on the publishing process and you bought a domain name that matches the title of your book. Your website is finally live and your book up for sale! Then, just as your starting the marketing phase, you're completely blindsided by a nasty letter from a law firm. They're demanding you immediately cease and desist using THEIR trademarked phrase.
Think it can't happen to unknown authors? Believe me, it happens ALL the time.
Sure, you could hire a lawyer and fight it but the legal fees alone could bankrupt you and, if you did indeed use their trademarked term, you chances are winning are slim to none. Your book is dead, your website is dead, and you must start all over. Some authors are so disheartened and frustrated when this happens that they kill their book altogether.
If they'd only done a simple three-step web search that takes just a minute or two, before starting the publishing process and choosing a name for their website, they could have avoided all that lost time and money.
So, what should you do before naming your book?
STEP 1 - Search the U.S. trademark website for the title of your book.
Hint: One or two of the words in your title might be a trademarked term (not the entire title) so don't use quotes when typing your title into the site. Avoiding quotes will result in phrases popping up that are similar, but not identical, to your title. The site is here:
In the blue box in the center of your screen, click: "Search Marks"
Then click: Basic Word Mark Search (New User)
Type your title into the Search Term Box.
Even if you find your title under a "dead" trademark, I recommend you avoid using it. It's already been used and you should create your own unique title to avoid future problems and confusion among buyers.
STEP 2 - Search Amazon for the title of your book.
While many book titles aren't trademarked, some are because the phrase is used for more than just the book's title. For example, Diary of a Wimpy Kid is not only the main title of a series of books, it's also a movie title and the trademark owner has claimed the name for use on board games, card games, plush toys, toy action figures and more.
Unless you're a leech trying to piggyback your success on some accidental sales by stealing another author's title (yes, there are authors out there like that and, surprisingly, most aren't shy about telling others what they're doing), you should avoid using a title that is already on another book. You don't want to be accused of being unoriginal and you don't want to confuse your readers.
STEP 3 - Search Google for the title of your book.
There may be a company already using the phrase that's also the title of your book, may already claim ownership of that name, and could register the trademark later. If you try to register the trademark for a phrase already being used by someone else, you could (and likely will) ultimately not get your trademark approved and, if it is, you could lose it later if the original creator sues you. It's pretty easy to prove who used a phrase first by searching the Internet archives so never try to pretend you used a term first when you know you didn't.
If you try to piggyback on the success of another well-known brand by making your name similar to theirs - similar enough to cause potential confusion among buyers - you could still find yourself with legal troubles. For example, the trademark owner of The Joy of Cooking sent a cease and desist letter to the author of a book called The Joy of Soy. More recently, the owner of the trademark of a rather uncommon, one-word nautical term sent a cease and desist letter to an author who used that word in the title of her book. Trademark owners can easily keep an eye on usage of their property simply by using Google Alerts. That's why so many authors are shocked when they're contacted by trademark owners within just days of their book hitting the market.
Even if you don't ultimately get sued for using someone's trademarked word or phrase, the headaches, stress, and legal fees associated with defending yourself can be far more than you'll want to ensure and spend. It's much better to simply prevent the legal threats in the first place by thoroughly researching your book's title before you begin the publishing process AND before you choose a domain name for your website.
Angela Hoy is the co-owner of WritersWeekly.com and BookLocker.com. WritersWeekly.com is the free marketing ezine for writers, which features new paying markets and freelance job listings every Wednesday. According to attorney Mark Levine, author of The Fine Print, BookLocker.com is: "As close to perfection as you're going to find in the world of ebook and POD publishing. The ebook royalties are the highest I've ever seen, and the print royalties are better than average. BookLocker understands what new authors experience, and have put together a package that is the best in the business. You can't go wrong here. Plus, they're selective and won't publish any manuscript just because it's accompanied by a check. Also, the web site is well trafficked. If you can find a POD or epublisher with as much integrity and dedication to selling authors' books, but with lower POD publishing fees, please let me know."
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