Understanding the difference between copyright and brand protection is key.
- Trademarks protect brand recognition and reputation. They prevent others from copying source identifiers, such as words, slogans, illustrated characters, series titles, fonts, and logos, that allow consumers to distinguish the source of one product or business from another.
- Copyright law protects original works of authorship, including literary, dramatic, musical, artistic, and sculptural works.
Trademark law serves two primary purposes: (a) protecting consumers from being misled about the source or sponsorship of products and services and (b) safeguarding the investments authors and publishers make in building their brands.
The key benefits of a federally registered trademark are the right to sue in federal court and access to Amazon's Brand Registry. Registering a series title, pseudonym, or well-known author's name with the U.S. Patent and Trademark Office (USPTO) allows you access to Amazon's Brand Registry—a cost-effective alternative to litigation that enables a trademark registrant to remove unauthorized content from the Amazon platform.
If you have a federally registered trademark, you can list it with Amazon's Brand Registry. This gives you access to tools that allow you to monitor Amazon for any listings that infringe on your trademark rights, such as unauthorized use of series titles or products falsely claiming affiliation with your brand. If you detect an infringement, you can submit a takedown request directly through the Brand Registry. Amazon will then investigate and, if a violation is confirmed, remove the offending listings.
If your issue with Amazon involves someone using your individualized expression without permission, that's a copyright violation. In such cases, use Amazon's "report the infringement" takedown tool.
Unfair Competition Law
Unfair competition law, governed by state and federal laws, protects businesses and consumers from deceptive or unethical commercial practices. Broader in scope than trademark law, it applies to a wide range of business activities, not just the deceptive use of marks. It can be used to combat various forms of misrepresentation, including false claims about the origin or endorsement of creative works, as well as other forms of deceptive business practices.
Even without a registered trademark, authors and other creators can invoke trademark and unfair competition laws to pursue bad actors who deceive consumers into falsely believing their products (including books, blogs, podcasts, and businesses) or services have been approved or endorsed by the brand owners.
Real-World Example: Jane Friedman's Case
Recently, publishing strategist Jane Friedman discovered multiple books published on Amazon under her own name that she did not write, constituting a clear case of free-riding on her reputation or false designation of origin under both state and federal law.
Jane's unregistered brand is associated in the public's mind with her in-depth knowledge of writing, book marketing, and navigating the changing landscape of the publishing industry. Fortunately, Jane could use her influence, rather than litigation, to get Amazon to take the books down. However, not all authors have this option available to them.
Key Takeaways for Authors and Publishers
- Regularly monitor for counterfeit books using your name or brand
- Consider trademark registration for strong brand protection
- Utilize Amazon's Brand Registry if eligible
- Use the appropriate tool (copyright or trademark) when reporting infringement
- Stay vigilant in protecting both your copyrights and your brand
By understanding and utilizing these tools and strategies, authors and publishers can better protect their work and reputation in the evolving digital publishing landscape.
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DISCLAIMER: The content of this article is intended to address general legal issues and does not constitute specific legal advice for any individual situation. It is strongly recommended to seek competant legal counsel before relying on any information contained herein.
Lloyd J. Jassin is a publishing attorney and former publishing executive. Throughout his career, he has been a vocal advocate for creators' rights, offering extensive writings and insights on contract negotiation, copyright, trademark, and defamation law. He is co-author of The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley). Before becoming an attorney, he was Director of Publicity for a division of Simon & Schuster. His legal practice is committed to helping clients navigate the ever-evolving landscape of publishing, ensuring that their intellectual property is protected and their creative visions are realized.
Contact: Jassin@copylaw.com or (212) 354-4442. His offices are located at 1501 Broadway, FL 12, New York, NY 10036, and in Madison, NJ. For more information, visit www.copylaw.org.
(c) 2024. Lloyd J. Jassin.
