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Can I Trademark a Sentence in Literature?

Brooklyn, NY |

The sentence is from a book of poems I wrote years ago: "The future is (word)." There is an existing 2008 trademark, in banking, according to one search tool, for two sentences together: "I am the future. The future is (word)." I wish to trademark only the second sentence, for general use. I wrote this sentence in 1973--though I can only document year 2000--and have noticed its increasing use in commercials, etc. I would like to profit from the fruits of my labor if at all possible. Additional searches show the second sentence has not been trademarked as a stand-alone sentence.

Attorney Answers 6

Posted

I wholly concur with the answer already given. Believe it or not "Are you ready to rumble?" which anyone attending a football or other stadium event has probably heard a few times, is a trademarked phrase, but it is in connection with the delivery of a service. Nothing in your question suggests you are planning to actually market a product or service, you just want to profit from others doing so based on your prior use of a phrase in a book. That takes you out of the realm of trademark.

Your only other option would be copyright, but the selection in question does not seem to rise to the level of protectable expression under the copyright laws.

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Asker

Posted

The sentence/line is already copyrighted by the fact that the book it appears in was copyrighted by the publisher in 2000. What is the delivery of service of Are you ready to rumble?"? I'm delivering a product. Does it not rise, or sink, to the level of "Rumble." ?

Brian Kenneth Dinicola

Brian Kenneth Dinicola

Posted

Well, it is important to not confuse your rights as an author to limit publication, distribution, and copying of your book (as well as derivative works based on it) from those that arise under common law and Federal trademark law. The fact that your book includes the subject phrase is not the same thing as offering a product or service and using that phrase to DESCRIBE the service/product. What matters as far as trademarks are concerned is that there needs to be an association - in the minds of consumers - between the product/service and you or your company as the source of that product/service. If anything, what you have suggested is that others are using the phrase for THEIR products and building up the good will.

Gerry J. Elman

Gerry J. Elman

Posted

Here is the data from the official record of the trademark registration that Attorney Dinicola helpfully cited as an example: Word Mark ARE YOU READY TO RUMBLE? Goods and Services IC 035. US 100 101 102. G & S: Advertising and promoting the goods and services of others rendered by, on or in posters, prints and other artwork, script and on-screen lettering, and live and pre-recorded announcements via audio, video and electronic media, namely, radio, television, motion picture films, motion picture trailers, videotapes, CDs, the global computer network, computer software and other electronic disks, namely, laser, CD-ROM and DVD, at or in connection or association with sporting, entertainment and cultural events. FIRST USE: 20030800. FIRST USE IN COMMERCE: 20030800 IC 041. US 100 101 107. G & S: Entertainment in the nature of a live announcer and in the nature of pre-recorded announcements recorded on audio, video and electronic media, namely, radio, television, motion picture films, motion picture trailers, videotapes, CDs, the global computer network, computer software and other electronic disks, namely, laser, CD-ROM and DVD, and performed, broadcasted or disseminated at or in connection with sporting, entertainment and cultural events. FIRST USE: 20030800. FIRST USE IN COMMERCE: 20030800 Mark Drawing Code (1) TYPED DRAWING Serial Number 76169018 Filing Date November 21, 2000 Current Basis 1A Original Filing Basis 1B Published for Opposition January 1, 2002 Registration Number 2938464 Registration Date April 5, 2005 Owner (REGISTRANT) Michael Buffer INDIVIDUAL UNITED STATES c/o Mark E. Kalmansohn, Esq. McPherson & Kalmansohn 24th Floor, 1801 Century Park East Los Angeles CALIFORNIA 90067 (LAST LISTED OWNER) READY TO RUMBLE, LLC LIMITED LIABILITY COMPANY CALIFORNIA 24TH FLR., 1801 CENTURY PARK EAST LOS ANGELES CALIFORNIA 90067 Assignment Recorded ASSIGNMENT RECORDED Attorney of Record Mark E. Kalmansohn Prior Registrations 1904692;1905876;2405492;2416799;AND OTHERS Type of Mark SERVICE MARK Register PRINCIPAL Affidavit Text SECT 15. SECT 8 (6-YR). Live/Dead Indicator LIVE The registrant appears to have a family of trademark registrations for variants, and for somewhat different goods and/or services, e.g. Word Mark READY 2 RUMBLE Goods and Services (CANCELLED) IC 025. US 022 039. G & S: [ Clothing, namely, T-Shirts ]. FIRST USE: 20000131. FIRST USE IN COMMERCE: 20000131 IC 035. US 100 101 102. G & S: Advertising and promoting the goods and services of others rendered by live announcements at or in connection with sporting, entertainment or cultural events, and via pre-recorded audio, video, and electronic media, namely, radio, television, motion picture films, motion picture trailers, videotapes, CD's, the global computer network, computer software and other electronic disks, namely, laser, CD-ROM, and DVD, at or in connection with sporting, entertainment or cultural events, programs, proceedings or activities. FIRST USE: 20000131. FIRST USE IN COMMERCE: 20000131 And I cannot bear to complete this comment without touting my own law firm's registered trademark that's also a sentence: SCIENCE FICTION MEETS LEGAL VISION.

Bruce E. Burdick

Bruce E. Burdick

Posted

I am surprised the WWF did not wrestle over that phrase, which they and their successors have been using for probably 30 years to start their wrestling matches. I see Progressive using "Are you ready to bundle" in a humorous parody poking fun at the stretched out way the phrase is usually rendered.

Maurice N Ross

Maurice N Ross

Posted

Asker: Your copyright covers your book as a whole, not the individual phrases within it. Unless you have begun (or intend to begin) to use the phrase to make, market an sell actual goods and services, you have no right to a trademark. And you cannot claim that you intend to make general use of the phrase---such general use is not how the law works.

Bruce E. Burdick

Bruce E. Burdick

Posted

In a nutshell, asker THE FUTURE IS BLEAK. You have NO chance of successful capturing exclusive rights to THE FUTURE IS NOW for all products. The untamed horse is out of the barn, locking it now leaves the horse wild and free.

Asker

Posted

Did Michael Buffer trademark this sentence at the beginning of his career or later when the horse was out of the barn, as you put it? The only real difference I see between what Mr. Buffer has done and what I am trying to do--amidst flights of negative legal arrows--is that Mr. Buffer is famously connected to that sentence, and I am not famous . Note the phrase "in connection with" the long list his lawyers drew up of possible infringements, including "cultural events." Theoretically, a cultural event could be a poetry reading. In other words, this is a global trademark extending far beyond the ring. They say money can buy anything in America.

Brian Kenneth Dinicola

Brian Kenneth Dinicola

Posted

Do a quick search using Google Books. I did. You will find that "The future is here" has been used by other authors well before 1976. As just one example: "A memorial of the American patriots who fell at the battle of Bunker Hill, June 17, 1775" which was published in 1896. See p. 38 "Their past in other lands is but a memory, the future is here, where their homes are, where they live and their children are to live after them." This is just one example mind you. I know we have beaten a dead horse here, but perhaps you can feel better knowing that you have not really left any rights on the table by not acting sooner.

Gerry J. Elman

Gerry J. Elman

Posted

To some extent, this discussion conflates "apples" with "oranges." E.g. Because the word APPLE had not previously been associated in public with a source of electronic equipment, Steve Jobs and Herb Wozniak were entitled to register for their fledgling company the text string APPLE for: computers and computer programs recorded on paper and tape, federal trademark registration 1078312, issued Nov. 29, 1977. The fact that others had been talking about APPLES in other contexts previously is immaterial. Cf. Book of Genesis. Cf. Isaac Newton and the conception of the laws of nature regarding gravity.

Brian Kenneth Dinicola

Brian Kenneth Dinicola

Posted

I think everyone here gets that point if you read the entire chain.

Posted

The only way to register a mark is to use it in commerce to mark or brand a product or service.

Nor can you register a copyright on a single sentence. Finally, copying one sentence from a poem is an infringement.

BTW, next time you write a poem or a collection, register at copyright.gov. Many advantages.

Licensed in Maryland with offices in Maryland and Oregon. Information here is general, does not create a lawyer-client relationship, and is not a substitute for consulting with an experienced attorney on the specifics of your situation.

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Asker

Posted

An infringement against what or whom? I pay the $35 for formal copyright on longer works like screenplays. Thanks.

Philip Leon Marcus

Philip Leon Marcus

Posted

Sorry, left out the important word "not." Copying one sentence is no infringement.

Bruce E. Burdick

Bruce E. Burdick

Posted

Asker, You said "the future is (word)" has not been trademarked. My search indicates there are 50 active trademark registrations for that phrase. You think you are concealing that your phrase is THE FUTURE IS NOW. You are wrong, there are TWO registrations for THE FUTURE IS NOW. http://tsdr.uspto.gov/#caseNumber=75765892&case... and http://tsdr.uspto.gov/#caseNumber=77155005&case... That is a very trite phrase, ubiquitous in sports pep talks.

Asker

Posted

If triteness disallowed legal assistance, much of our culture would collapse.

Posted

"I wrote this sentence in 1973" - have you been using the phrase in commerce to denote the source of goods or services? If not, you will have no cause of action.

Also, There is no trademark for "general use" you would have to pay for registration in every category you use your mark in.

Trademarks are used to protect consumers from fraudulent goods/ services, not create a revenue stream for people that come up with clever phrases.

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Bruce E. Burdick

Bruce E. Burdick

Posted

Asker, You said "the future is (word)" has not been trademarked. My search indicates there are 50 active trademark registrations for that phrase. You think you are concealing that your phrase is THE FUTURE IS NOW. You are wrong, there are TWO registrations for THE FUTURE IS NOW. http://tsdr.uspto.gov/#caseNumber=75765892&case... and http://tsdr.uspto.gov/#caseNumber=77155005&case... That is a very trite phrase, ubiquitous in sports pep talks.

Posted

I agree with the other. Yes, in theory you can trademark a sentence.

First, however, the only way to know if a mark is available to you is to have a professional conduct a comprehensive clearance on it under both federal and common law.

Next, and as noted, a TM identifies the source of a particular good and/or service. Further, you must be using it in commerce in order to achieve either common law holder status or a federal registration (requiring interstate commercial use).

I will link you to some general helpful info below and suggest that you consult with a TM lawyer in private so you can fully understand the process and a best course of action for yourself. Most of us here, including myself, offer a free phone consult.

Best regards,
Frank
Natoli-Lapin, LLC
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Asker

Posted

The sentence occurs in a paperback, CD and e-book for sale. These materials are available for purchase world wide.

Frank A. Natoli

Frank A. Natoli

Posted

But that is not a trademark. You cannot claim ownership of a sentence or saying in general. It can only be done in relationship to the sale of a particular good or service. If you would like more clarification you are welcome to call my office: 866-871-8655 Best regards Frank

Bruce E. Burdick

Bruce E. Burdick

Posted

Asker, You said "the future is (word)" has not been trademarked. My search indicates there are 50 active trademark registrations for that phrase. You think you are concealing that your phrase is THE FUTURE IS NOW. You are wrong, there are TWO registrations for THE FUTURE IS NOW. http://tsdr.uspto.gov/#caseNumber=75765892&case... and http://tsdr.uspto.gov/#caseNumber=77155005&case... That is a very trite phrase, ubiquitous in sports pep talks. Asker, for you THE FUTURE IS BLEAK. However, if you have additional facts or additional questions you should see a NY licensed lawyer such as Attorney Natoli.

Posted

No. You are not entitled to trademark this phrase. Trademarks are designed to identify the source of goods and services. Trademark rights arise from use in interstate commerce by companies to brand their products. Your use of the sentence in a book of poems is not sufficient to constitute interstate commerce use of the phrase to brand a product or service.

Further, you could not protect this short phrase under copyright law. Copyright law would protect your entire poem but not this phrase.

Of course, if you started a business where you sold products (T-shirts, caps, merchandise, whatever) using this trademark to identify your business as the source of this product, the phrase could become a trademark. But as it stands now, there is no legitimate way for you to seek trademark protection.

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Asker

Posted

Maybe not yet. Think of how dated the phrase "interstate commerce" is. What we're really talking about here is the blogosphere, branding and building platforms in cyberspace. Notice Mr. Buffer's trademark extends to "the global computer network." Even that phrase sounds dated. He is not limited to the ring, and I am not limited to a book of poems.

Maurice N Ross

Maurice N Ross

Posted

Asker. Are you the same person who continually raises the same issue through Linked In? If so you are beating a dead horse. You simply do not understand trademark law and you have refuses to listen to dozens of experts all of whom reject your insane legal assertions

Asker

Posted

No.

Posted

The future is bleak.

The future is Not now for you.

You have no trademark, you have no copyright, you have no case as regards the phrase:"
THE FUTURE IS NOW.

You said "the future is (word)" has not been trademarked. My search indicates there are 50 active trademark registrations for that phrase.
You think you are concealing that your phrase is THE FUTURE IS NOW.
You are wrong, there are TWO registrations for THE FUTURE IS NOW.
http://tsdr.uspto.gov/#caseNumber=75765892&caseType=SERIAL_NO&searchType=statusSearch
and
http://tsdr.uspto.gov/#caseNumber=77155005&caseType=SERIAL_NO&searchType=statusSearch
That is a very trite phrase, ubiquitous in sports pep talks.

Besides the above, and the one you mentioned:
http://tsdr.uspto.gov/#caseNumber=77155005&caseType=SERIAL_NO&searchType=statusSearch
There is
THE FUTURE IS BLACK
THE FUTURE IS GREEN
THE FUTURE IS BRIGHT
THE FUTURE IS OURS
THE FUTURE IS YOURS
THE FUTURE IS WILD
THE FUTURE IS HERE
THE FUTURE IS GROWNING
etc., etc., etc.

As I said at the outset, for you. . . THE FUTURE IS BLEAK.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

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Asker

Posted

Sorry, not the right word. You are jumping to conclusions. I do appreciate your taking the time to comment, though.

Bruce E. Burdick

Bruce E. Burdick

Posted

The same logic will apply regardless of the word. I was indeed jumping to conclusions. In view of http://tsdr.uspto.gov/#caseNumber=77155005&case... I still doubt I have the wrong word. But, even if I have the right one, you would be wise to deny it. I think you are wise. Wise to ask and wise to deny.

Bruce E. Burdick

Bruce E. Burdick

Posted

http://tsdr.uspto.gov/#caseNumber=77155005&caseType=SERIAL_NO&searchType=statusSearch seems it got clipped and rendered blank in the prior comment.

Bruce E. Burdick

Bruce E. Burdick

Posted

Here is an interesting play on I AM THE FUTURE. http://tsdr.uspto.gov/#caseNumber=78336297&caseType=SERIAL_NO&searchType=statusSearch