-I know that when a work falls under public domain (copyright wise), you often can't publish a new work with that title when the title is trademarked (specifically, Conan the Barbarian, Sherlock Holmes, Tarzan, and Zorro). Not being able to publish Conan the Barbarian under that title effectively is a type of mutant copyright.
I also know that the Dastar Corp ruling said you can't use trademark as a mutant copyright towards public domain works. So, shouldn't the Dastar ruling enable to me legally to legally publish a book under the title "Conan the Barbarian" (I would obviously say something like "inspired by Robert E. Howard's version") and not face consequences from his estate? By extension, shouldn't it effectively "cancel" all Conan trademarks by his estate?
In your particular example, the trademark rights encompass products so that it no longer relies at all on the original book. As long as the products using the trademark exist and continue to be sold, there are enforceable trademark and unfair competition rights to the title.
Just because one form of protection for a work has expired does not mean all forms of protection for that work as expired. The vast majority of copyrighted works that lose copyright protection fall into the public domain for all purposes. Some, however, also serve as trademarks to brand a particular producer's products or services. Just because the copyright in that source-identifier expires does not mean that the producer loses his trademark rights in that source-identifier. You need to re-think what you think you know about fundamental intellectual property law.
The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
As my colleagues have rightly pointed out, copyright protects the artistic expression (i.e., the right to make a copy) and that artistic expression can and does go into the public domain. Trademark rights exist to provide information to consumers in the marketplace, with the goal of avoiding consumer confusion (i.e., the right to use that mark in trade). Trademark rights can last forever.
Anything I post on Avvo, a public forum, is intended as general information based on the facts provided, and is not legal advice or a legal opinion. My posts do not create any attorney-client relationship, and any contact with you beyond these posts will start with disclosure of opposing parties to allow me to check for conflicts. You should not rely solely on these posts to take or not take any particular action. You should speak with a competent attorney before taking further action.
Copyright protect a work of authorship, such as book or magazine's content. Not the name or title. Trademarks protect a name or brand in conjunction with the sale and promotion of particular goods or services. These are separate and distinct rights that exist independently. If you need more detailed advice, I suggest that you retain an experienced Trademark, Copyright IP attorney, who can advise you in confidence.
For more detailed advice, I recommend that you contact an experienced Trademark, Copyright/IP attorney to advise you in confidence about your options and potential costs. Many IP specialty firms, like ours, offer an initial free conference by telephone, video conference or in person if you are available locally and would be happy to speak with you. Call and speak with an experienced Trademark, Copyright attorney who can assist you.
Mr. Sack's postings on Avvo are of a general nature, based on the facts provided and are not intended to be taken as legal advice or to establish an attorney-client relationship.
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