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Is it possible to trademark the title of a movie?

Los Angeles, CA |

I want to trademark the title of my movie.

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Filed under: Intellectual property
Attorney answers 6

Posted

As a general matter, I was taught that titles of movies can neither be copyrighted or trademarked. I have trouble seeing how a movie title can be registered as a trademark, because it is not in connection with a good or service.However, a lawyer in Los Angeles thinks he can get it registered, according to an article he did a few years ago. You can read his article here: http://troygould.com/layouts/50/graphics/handel_la_lawyer.pdf . You might want to contact him.

www.bayoaklaw.com. 510-208-5500. This answer does not create an attorney-client relationship. It is not legal advice, because it is only of a general nature. Please contact a lawyer qualified in your jurisdiction to discuss your situation in confidence, using your factual details. Avvo answers are only general legal responses. Item 9 of Avvo.com's Terms and Conditions are incorporated in this disclaimer as though it were printed here.

Michael Charles Doland

Michael Charles Doland

Posted

Thanks so much for the link. I am in Los Angeles County, get the magazine, and had completely forgotten about the articles since I do virtually no entertainment work.

Andrew Kevin Jacobson

Andrew Kevin Jacobson

Posted

Happy to oblige. I'd love to know if Mr. Gould was successful.

Bruce E. Burdick

Bruce E. Burdick

Posted

Almost every major movie title is a trademark because almost every major movie is merchandized. Think of STAR WARS. Billions of dollars in toys. Any good IP lawyer should be able to get a registration on a movie title that is even minimally merchandized.

Bruce E. Burdick

Bruce E. Burdick

Posted

Andrew, to know if trademarking movie titles can be successful, just contact Lucasfilm, Ltd. as ask. They have over $20 billion in consumer sales. See confirmation at http://www.lucasfilm.com/divisions/licensing/ Ever heard of STAR WARS or INDIANA JONES. Look on TESS and see what you find for those. Lucasfilm also owns the trademark "ANDROID". Perhaps Molly Hansen could enlighten you about her experience at Dream Works trademarking movie titles.

Andrew Kevin Jacobson

Andrew Kevin Jacobson

Posted

Having been 14 when the original Star Wars came out (and thus the ideal audience), I know Star Wars very well. However, LucasFilm didn't try to register the trademark until the late 1990s, when it had already done an historic trilogy, and was coming out with a second. Please remember that the writer was talking about a single work, not a series, and nothing about merchandise. TMEP 1202.08 provides the operating rule: 1202.08 Title of a Single Creative Work The title, or a portion of a title, of a single creative work must be refused registration under §§1, 2, and 45 of the Trademark Act, 15 U.S.C. §§1051, 1052, and 1127, unless the title has been used on a series of creative works. The title of a single creative work is not registrable on either the Principal or Supplemental Register. Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1162, 64 USPQ2d 1375, 1378 (Fed. Cir. 2002) ("the title of a single book cannot serve as a source identifier"); In re Cooper, 254 F.2d 611, 615-16, 117 USPQ 396, 400 (C.C.P.A. 1958), cert. denied, 358 U.S. 840, 119 USPQ 501 (1958) ("A book title ... identifies a specific literary work ... and is not associated in the public mind with the publisher, printer or bookseller...."); In re Posthuma, 45 USPQ2d 2011 (TTAB 1998) (holding the title of a live theater production unregistrable); In re Hal Leonard Publ’g Corp., 15 USPQ2d 1574 (TTAB 1990) (holding INSTANT KEYBOARD, as used on music instruction books, unregistrable as the title of a single work); In re Appleby, 159 USPQ 126 (TTAB 1968) (holding the title of single phonograph record, as distinguished from a series, does not function as mark).

Posted

The article cited and linked by Mr. Jacobson is a fantasitic analysis, although some lawyers may have different opinions. I note that if the title to your movie is applied to different goods aside from the movie, something like Jaws soap, registration would not be barred.

The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.

Posted

Titles cannot be copyrighted or trademarked. I suggest you speak to an IP lawyer in your area as there are many issues involved in releasing a movie and if you have this question you likely need legal advice for others.

The answers given are informational only and do not constitute legal advice. Please feel free to contact me if you want to obtain legal advice from me.

Posted

What a great question. A lot of general practitioners who don't specialize in trademark law are not aware of the nuances in this area.

Titles of a single work are consider not to be "inherently distinctive" and therefore not entitled to trademark registration. That means that they do not inherently identify the owner as the single source of the work and need to "acquire distinctiveness". Generally there are two ways titles acquire "secondary meaning" or acquired distinctiveness. The first is that a second movie under the same title is made, i.e., a series of movies. The title of a series of movies is considered inherently distinctive and entitled to trademark registration. The other is that the movie/title acquires substantial consumer recognition through extensive distribution and advertising. The applicant can submit a variety of different evidence of consumer recognition, including advertising expenditures and unsolicited press coverage to support this claim.

There are ways to register titles with the Copyright Office as well.

I hope this helps further your understanding.

Comments provided on this website are not intended as legal advise and do not create and attorney client relationship.

Posted

yes, but only after the second movie (at that time it becomes a series)

Posted

Of course you can. It is done on almost every major movie. You do it through merchandizing and registering the trademark for the merchandized goods. Lucasfilm, Ltd. has over $20 billion in licensed consumer products. See http://www.lucasfilm.com/divisions/licensing/

Can't do it for a single movie? BS. See the following:
1 85612465 JAMES CAMERON'S AVATAR
2 85612440 JAMES CAMERON'S AVATAR
3 85612408 JAMES CAMERON'S AVATAR
4 85612381 JAMES CAMERON'S AVATAR
5 85612339 JAMES CAMERON'S AVATAR
6 85612292 JAMES CAMERON'S AVATAR
7 85612240 JAMES CAMERON'S AVATAR
8 85612206 JAMES CAMERON'S AVATAR
9 85612152 JAMES CAMERON'S AVATAR

or last years's Best Picture: Slumdog Millionaire
http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=77675935

Indeed, if you don't do that you can lose the name for merchandizing, to wit, a prior year's Best Picture, Hurt Locker
http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=77756452 or
http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=77517894
and then you might have to resort to hiring copyright trolls to secure your revenue stream:
http://www.techdirt.com/articles/20120424/01184018623/hurt-locker-producers-now-understand-copyright-troll-shakedown-better-sue-2514-more-defendants.shtml
which rightful or not you see can give you a black-eye.

You need a trademark lawyer, and should make it one that understands how this is done.

So far, this is free to you. Until you pay a fee, I am not your lawyer and you are not my client, so you take any free advice at your sole risk. I am licensed in IL, MO, TX and am a Reg. Pat. Atty. so advice in any other jurisdiction is general advice and should be confirmed with an attorney licensed in that jurisdiction.

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