I've developed a screenplay with (what I think is) a catchy title. Besides the cost associated with the application, are there any downsides to me trademarking the title?
Divorce / Separation Lawyer
Great question. I recommend contacting the California Lawyers for the Arts for assistance with this. Here is a link to their website to read more: http://www.calawyersforthearts.org/. Best of luck and congratulations on your screenplay.
If you are asking whether you should seek to register with the U.S. Patent & Trademark Office the title of a screenplay as a trademark, that's the answer. Because the title of a book is not subject matter that's protectable via federal trademark law.
And the word "trademark" is not, strictly speaking, a verb.
If you are interested in establishing some sort of record of a proprietary right in a screenplay, talk to the various writers' guilds that provide registries.
This posting is intended for general education and isn't "legal advice." It doesn't create or evidence an attorney-client relationship. You are encouraged to engage an attorney in the pertinent jurisdiction for confidential legal advice on matters of any importance. -Gerry J. Elman, J.D. Elman Technology Law, P.C. Swarthmore, PA www.elman.com
The simple answer... Yes. The real question is when. Consult with an entertainment attorney to understand your options and optimal timing.
Trademark Application Attorney
You cannot trademark the name of a "single work" of art--ie the name of one book or one screenplay is typically not something that can be protected via trademark. If the screenplay will be a "series" (for example, something like the Harry Potter series) or have some other merchandise associated with it (clothing, mugs, stationary?) the name may be something you can register as a trademark. The fixed artistic expression, however can be protected via copyright laws. Your best bet is to discuss these options and the different costs with an IP attorney.
I agree with Ms. Oliner. You can't register the title of a work, but if you're going to have merchandise or other associated things that use the name of the title, or services that share the same name as the title of the screenplay, you can register it for that purpose. Definitely talk to an intellectual property attorney in your area for further advice and to explain your situation and intentions.
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I am not an IP attorney but it seems to me that the obvious question to you is whether you are confused about a copyright vs. trademark. You can 9and should) copyright your screenplay w/.o any question. A trademark seems moot at this stage as it is a single piece of work you are trying to protect and the copyright seems paramount to me.
My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained.
Intellectual Property Law Attorney
Trademarks protect brands - service brands or product brands. They do not protect the name of a single work of art. I'm impressed, however, that you did ask about trademarks; obviously, you're aware that your copyright will not protect the title or any other short phrase in your work under US law. Unfortunately, that is because the US government has decided that titles of single works should not be protected because it limits the creativity of others unnecessarily. As a result, trademark law cannot be used to fill that gap.
So, the downside to your filing a registration for the title of your screenplay, aside from the fee associated with that application, is that it will be denied.
No information you obtain from this answer is legal advice, nor is it intended to be. You should consult an attorney for individualized advice regarding your situation. No attorney-client relationship is formed by my responding to your question.
I agree with Ms. Oliner. You cannot trademark the name of a single work of art -- that is, the name of one book or one screenplay is typically not something that can be protected via trademark. Also, titles alone are not protected by copyright law. And, while the MPAA has created a Title Registry Bureau, only members of the MPAA (the 6 major studios) and other “subscribers” who pay a fee and agree to be bound by the Bureau’s rules, can take advantage of the service. (If you are interested in learning more about the Title Registration Bureau, the MPAA can be reached at 818.995.6600 and you will want to ask for "title registration" department.)
From a practical standpoint, the best way to keep control of your catchy title, is to register any websites you think you'd want to use, try to get your screenplay set up without circulating the catchy title (to minimize others having access to it), and then start using the catchy title only when you are ready to actually release the film.
Any answer or other information posted above is general in nature and is not intended, nor should it be construed, as legal advice. This posting does not create an attorney-client relationship between you and the posting attorney, and you are urged to engage a qualified attorney who is licensed to practice in the relevant jurisdiction.
Intellectual Property Law Attorney
I have to dissent in part from my learned colleagues. While it is true that you cannot trademark the name of a single work such as a screenplay, there may be many legitimate grounds to obtain trademark protection for this catchy title, at least on an intend to use basis. If you intend to develop a series of works using the catch phrase, or if you intend to develop lines of merchandise (books, t-shirts, mugs, shoes, music compilations, soundtracks, foreign language versions, etc) under the brand of the "catchy title", then you should seriously consider obtaining trademark protection. Movies are no longer a single product--most movies are associated with many other ancillary products, such as musical soundtracks, sheet music of the songs in the movie, book versions of the screenplay, merchandise (fashion, shoes etc), posters, food, and many others. Most big studio production companies time the release of these products into commerce with the release of the film itself and, therefore, the title is not merely relevant to a single film or copyrighted work, but to many other related products and services. Especially when you attempt to develop investors to commercialize your screenplay, you will want to impress upon them the various streams of revenues in addition to the film or television show, itself, and trademark protection can be a very important factor in investment decisions.
Most importantly, however, you should not be doing any of this by yourself. You need to work with IP counsel and business counsel for developing strategies to commercialize and generate revenues from your screenplay. The decision as to whether and when to apply for trademark registration is one of dozens of decisions that anyone who writes a screenplay will need to make, and these decisions need to be made in collaboration with investors and legal counsel.
I will have to agree with Mr. Ross.
While the strict answer to trademark for a single work is "no," that is not an answer that takes into account the practical business use of a screenplay title. Even an independently produced film with a tiny budget will contain a section of the formal business plan that will take into account any sort of ancillary revenues from merchandising and other licensing opportunities. Whether your script and title is a feasible concept from a marketing standpoint to justify investment to try to actually monetize revenue streams other than the "single work" (i.e. the screenplay/film) is not a question for the trademark office.
Bottom line, from my perspective, your catchy title is a descriptive word which designates the origin of a variety of goods (and potentially services), not just the single work which is the movie/screenplay. But yes, you will still need a qualified IP lawyer to handle your application properly.
Trademark Application Attorney
This is a very wise and thoughtful approach to protecting your blood, sweat and tears. Well, hopefully not the blood or the tears. There are already so many good answers to your question. Many of which commented on the exact issue I thought of when I saw your post. So I will just reiterate one point, to drive the it home for you and hopefully cause you to act and protect. If you have any inclination that your creative work will spawn ancillary products or services within the next few months/years (up to approx 3 1/2 to 4 years, depending on USPTO review/approval time, etc.), then you should trademark the name as intent to use for those potential ancillary products or services.
Note, if you pass muster with the USPTO examining attorney w/re to your mark and its products/services, and it is approved for registration pending a Statement of Use (proof of actual use in commerce), but you haven't yet created or gone to market with any of the intent to use items, you can file up to 6 extensions of time (6 months at a time and $150.00 per pop per class of goods - not including legal fees) to provide you with enough time to get a product/service in to the stream of commerce and thereby complete your registration.
The reason behind trademarking ancillary products or services is, of course, to protect those particular goods or services. But more than that, and more than was discussed by any of my colleagues here, is that by virtue of the trademark protection you would obtain on the ancillary products/services, you would also earn recognition (and moral protection) for the name of your screenplay. The moral protection would not be legally enforceable, of course. But just by having the name trademarked for other goods and services that are tangentially related to the screenplay will provide you with consistency and continuity to be able to successfully market and protect your products/services AND your screenplay in a much bigger way.
Good luck. I hope you are wildly successful.
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There is no real downside to filing provided you are using the title of your screenplay in connection with the sales of goods and services. If you are not using the mark yet, then you will need to file a 1B intent-to-use application. However, I would expect your filing to be rejected by the USPTO because a single screenplay title is not sufficient to qualify for trademark registration. You will need to have some type of entertainment services offered in connection with your title if you want to secure a USPTO Class 41 Entertainment Services mark. If your screenplay is conducive to merchandising, then you can perhaps secure trademarks in some of the standard merchandising classes like Class 16 (paper and printed products), Class 25 (clothing) and Class 28 (toys).
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