Author Tries To Trademark The Word 'Dark' For All Of Literary Fiction

from the um-no dept

For whatever reason, while we see a ton of instances of someone trying to trademark a word or phrase that is absolutely generic and not a source identifier, often it seems some of the most ridiculous instances come from the literary world. Why authors have such a hard time with this is perhaps not entirely mysterious. Steeped in an industry with a tradition of strong views on copyright protections, I suppose it's a short leap that those in that industry would assume trademark works the same way. After all, journalists make this mistake all the time, so why not authors?

Still, witnessing my book-writing brethren make a run at trademarking words like "how" or "cocky" is more than slightly frustrating. And now we can add the word "dark" to the mix, as author Christine Feehan has applied for a trademark on that word for use in books and fiction.

Christine Feehan is the author of several bestselling series, including one simply called "Dark" -- in her trademark application with the USPTO, she has applied for the exclusive right to use the word "Dark" (in "standard characters without claim to any particular font style, size, or color") in "Series of fiction works, namely, novels and books."

Literally thousands of books have the word "dark" in their titles, including several series such as Phillip Pullman's His Dark Materials and Stephen King's Dark Tower books.

Yeah, they literally do. And not just books, either. Hell, His Dark Materials has an HBO adaptation showing right now (and it's great). The idea of locking up a generic single word such as "dark" for all of fictional literature is one of those things that should obviously not be allowed to occur. But for the legal argument as to why this isn't a thing is because a word like "dark" very obviously doesn't denote the source of a good. For one, it isn't unique. For two, the word is and has been used in literature since roughly the time that man created literature.

Now, before we all start wringing our hands here, it's nearly certain that this trademark will never be approved.

Feehan's application has not yet been assigned to an examiner. It was filed on her behalf by Greg Mavronicolas, a New York based attorney from the Mavronicolas Law Group PLLC.

Dark days are most likely ahead for Feehan, as this is one application that should be tossed in the trash.

Filed Under: christine feehan, dark, fiction, trademark


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  • identicon
    Anonymous Coward, 4 Dec 2019 @ 8:15pm

    that's dark

    reply to this | link to this | view in chronology ]

  • icon
    charliebrown (profile), 4 Dec 2019 @ 9:05pm

    Let There Be Light

    Maybe she's hoping to make more authors who do light-hearted books?

    It is a dark soul who thinks they can own a word like this.

    Maybe she can write a sequel to "Dark", call it "Light" and sell those books together in one big tome called "Twilight" and see how far she gets.

    reply to this | link to this | view in chronology ]

  • icon
    ysth (profile), 4 Dec 2019 @ 9:14pm

    Dark Techdirt

    reply to this | link to this | view in chronology ]

  • icon
    Hugo S Cunningham (profile), 4 Dec 2019 @ 9:21pm

    Snoopy will need new opening sentence for his masterpiece

    reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 4 Dec 2019 @ 10:12pm

    We should be awed that Greg Mavronicolas is involved in this trademark filing.
    He is on the 2018 'New York Metro Super Lawyers Rising Stars' list.

    The last time I heard about the Super Lawyer list was one of the Prenda appeals, where one of the judge noted that the lawyer was "Super", and clearly gave him the respect that designation deserved.

    https://youtu.be/ObZDipKRH0c?t=1944

    Greg appears to be remarkably talented, as he specializes in everything. That ranges from commercial real estate transactions to FTC compliance, including commercial litigation and international arbitration. Unlike those large stodgy firms that limit themselves to narrower areas of expertise, he apparently knows everything.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Dec 2019 @ 1:07am

      Re:

      A lawyer is supposed to be able to take ANY type of case. Most don't because they want to use templates and milk one area. Lawyers don't specialize except in Patents.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Dec 2019 @ 3:45am

        Re: Re:

        Did you forget /s at the end of your response?

        reply to this | link to this | view in chronology ]

      • identicon
        Call me Al, 5 Dec 2019 @ 5:18am

        Re: Re:

        I think that may come as a surprise to a great many lawyers. Suggesting someone who spends all their time on divorce cases can just pick up a homicide defence without massive re-learning / training is nonsense.

        reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 4 Dec 2019 @ 10:14pm

    Well...

    You definitely don't want to name your company The Dark South Butt.

    reply to this | link to this | view in chronology ]

  • icon
    Ben (profile), 5 Dec 2019 @ 12:10am

    Holy Trademark Batman!

    She's going to be up against The Dark Knight!

    It is cases like this which clearly indicate which lawyers you should not go to for handling trademark filings. The good lawyers would tell you that it can't be that generic and suggest other means, like font, or color, or something, to make it unique enough to serve as a mark.

    reply to this | link to this | view in chronology ]

  • icon
    Not an Electronic Rodent (profile), 5 Dec 2019 @ 12:30am

    Insert groan here.

    Clearly, the woman has been kept in the dark about how trademarks work...

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 5 Dec 2019 @ 1:28am

      Re: Insert groan here.

      I suspect that she thought she was being clever with the naming, but then realised how hard it is to find her book just using the title in a search.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Dec 2019 @ 1:23am

    Guys, I think we just found John Smith!

    reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 5 Dec 2019 @ 1:27am

    "Christine Feehan is the author of several bestselling series, including one simply called "Dark""

    Good for you, Christine. Now, where did you come up with that word? Did you perhaps read it somewhere?

    "Yeah, they literally do. And not just books, either."

    Even taking the word in isolation, it's not an original concept. James Herbert's The Dark was one of the first books that came to mind, while I watched a TV series on Netflix a while ago called simply "Dark".

    reply to this | link to this | view in chronology ]

  • icon
    Bt Garner (profile), 5 Dec 2019 @ 2:00am

    I am hoping that the book and subsequent made for TV movie covering this tale is titled "Dark Stupidity."

    reply to this | link to this | view in chronology ]

  • identicon
    David, 5 Dec 2019 @ 3:12am

    Looks like someone wants to cash in

    on the United States ushering in the new Dark Ages.

    reply to this | link to this | view in chronology ]

  • identicon
    Annonymouse, 5 Dec 2019 @ 4:35am

    "Now before we all start wringing our hands here"

    I very much doubt it is the hands that will be wrung.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Dec 2019 @ 5:18am

    IF random trolls can trademark simple common words for fiction then We will be truly be in the dark ages ruled by trolls and idiots .you have free speech as long as you do not use the words dark or another 1000 words owned by a random trademark troll .
    We have already seen small startups attacked by software patent trolls
    over broad basic concepts in common use .
    if he gets this trademark he could sue wb or the publisher for any new issues of the dark knight comicbook .
    its a ridiculous attempt to own a simple common word used by 100,s of authors already.

    reply to this | link to this | view in chronology ]

  • icon
    TasMot (profile), 5 Dec 2019 @ 5:27am

    It was a DARK and stormy night when the word not-light was trademarked.

    reply to this | link to this | view in chronology ]

  • identicon
    Magnus Bergqvist, 5 Dec 2019 @ 5:44am

    The streets ran black by the colour of ink, as publishers cried out "Shame! Shame! Shame!" after witnessing the efficiency of the combined arrogance and stupidity of the parties involved for even thinking that such a thing was possible.

    reply to this | link to this | view in chronology ]

  • icon
    Chris-Mouse (profile), 5 Dec 2019 @ 5:58am

    Try a search on Amazon...

    I did a search for "dark" on Amazon, and got 20 pages of books with 'dark' in the title. That's around 300 or so books, and that's just books currently in print and carried by Amazon.

    reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 5 Dec 2019 @ 6:53am

    The amount of prior art with dark in it's title is going to be so high it will block out the light.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Dec 2019 @ 8:23am

    I guess literature is going dark.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Dec 2019 @ 11:10am

    It seems Christine 1) Didn't know much about trademark law, 2) Has been heavily smitten by the righteous hand of social media and now 3) Claims she's "already asked my trademark lawyer to withdraw all of the current single word applications that have been filed and that are causing so much distress. I don't know how long this will take for it to fully process the requests but I have been working on it. I want to clarify again that I have absolutely NO intention of trying to prohibit other authors from using those words in their titles or part of their series names. That was NEVER my intention. By filing for trademarks, my intention was only to secure my ability to use the series titles in future projects for my own readers’ clarity, not to go after other authors or limit their expression. I am very sorry for any stress this situation may have caused to authors with those same words in their title or series who have been concerned that I would go after them unfairly. I support and appreciate my fellow authors, many of them who sport Dark in their titles and series names and many who I call my very dear friends."

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 6 Dec 2019 @ 1:16am

      Re:

      "I have absolutely NO intention of trying to prohibit other authors from using those words"

      Someone should explain to her that the ONLY purpose of a trademark is to prevent others from using it in certain ways.

      "By filing for trademarks, my intention was only to secure my ability to use the series titles in future projects"

      I'd love to hear her explanation as to what was stopping her from doing that without the trademark.

      reply to this | link to this | view in chronology ]

  • identicon
    Sheila_an_Author, 9 Dec 2019 @ 1:52pm

    Ridiculous

    First of all, did anyone here research her claim or just jump on the bandwagon of hate?
    You can trademark a single word. Twilight. Goosebumps. It's context that people seem to be missing here.
    Her attorney has a great reputation. Perhaps he could've learned a bit more about current affairs in fiction writing (Cockygate) and addressed this in a way that layman might understand (add the categories for movie and graphic novel as well so it didn't look so suspicious to people who don't understand).
    The author already withdrew the single word trademarks. It's done. They're dead. She wasn't trying to be greedy. She wasn't stupid. She took the advice of a well respected attorney who is a specialist in this field. Like most would.
    Right or wrong, she took down the trademarks because she never meant to hurt anyone or frustrate them or make people worry. She has a 30 year reputation in the industry of helping other authors. She has NEVER had any blemish on her reputation. Quite the opposite.
    Since this is a tech site let me give an example that might help.
    How many of you realize there are people out there who buy up domain names? They buy up simple words, combination of words, they troll trademarks to buy up domain names that way. Then they sell those for lots of money.
    You can't do that with a trademark BTW.
    But, don't you think that if it were at all possible to trademark a word and hold it hostage from the English language and all fiction writing before this ever happened, we'd all be aware of people buying up words? IF it could be done and money made off it, every word in the English language would cost you money to use. But, it doesn't. Because, you can't.
    There was never going to be a conflict with "The Dark Knight" or "The Dark Tower" it doesn't work that way.
    This lady might be guilty of not foreseeing this after all the Cockygate stuff, but she wasn't guilty of trying to steal a word. That's ridiculous. And as soon as she realized how it appeared to people she took it down. Could she have fought it and been ugly? Yes. But, she apologized to anyone she upset and removed it. That's a lot more class than most people commenting about have.
    This whole thing made the industry look bad. That's sad.
    It showed that hate culture is alive and well. And that "flash mob" is Twitter's second name.
    She should've been more careful. But at least she wasn't cruel, snide or mean.
    And now I'll wait for you all to hate on me. Because that seems to be what we've all come to.

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 9 Dec 2019 @ 3:49pm

      Re: Ridiculous

      “Can” and “should” are two separate things entirely, and which word it is makes a huge difference.

      reply to this | link to this | view in chronology ]

      • icon
        Sheila_an_Author (profile), 9 Dec 2019 @ 4:57pm

        Re: Re: Ridiculous

        True.
        You can.
        And sometimes you should. It's according, again, to context.
        To secure your series for comics and graphic novels or movies it's expected that you'll trademark the series. This is standard which is why you have words like Twilight and Goosebumps trademarked.
        Trademark has to do with branding and with consumer confusion. It isn't about "owning" a word.
        The Dark Series has been around since the 1990's and is well established (34 novels). The problem wasn't the trademark, which still had a chance of being approved. The problem was the perception when the attorney only used the word "Dark" and not "The Dark Series".
        People were trying to get Stephen King to chime in on this, but he didn't. Neither did Nora Robers or other notable authors with the word "Dark" in their titles or series. They didn't need to because the potential trademark wouldn't actually infringe on their works. Why should they pay legal fees for a fight that's not happening?
        Being angry or fearful isn't the problem. To me, the problem is thinking your feelings validate your opinion or justify the level of cruelty I witnessed over this issue.
        This isn't a trademark problem. It's a society problem.
        I just wish people had more compassion. I get not having the time or energy to go out and research complicated trademark issues. But, making things up, perpetuating incorrect information, calling names, sending threats, and generally being mean isn't a reflection of what she deserves, it's a reflection of what's inside of the person doing it.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 12 Dec 2019 @ 7:43pm

          Re: Re: Re: Ridiculous

          When I was a kid and made a selfish stupid decision, especially in cases which insinuated I had control over other people's property which I did not have, I got punished. Why the fuck do adults get a free pass? What is it about intellectual property that turns all your brains into tepid tapioca pudding and make you demand for money, then backpedal like mad and give pathetic "it was just a prank bro!"-level responses when you inevitably get backlash?

          We're sick and tired of intellectual property's advocates wielding it like a nuke. That you have to come to a site to concern troll is telling.

          reply to this | link to this | view in chronology ]

        • icon
          bhull242 (profile), 15 Dec 2019 @ 3:30pm

          Re: Re: Re: Ridiculous

          For the record, any titles containing the word “Dark” would legally infringe on that trademark. Whether or not the author would enforce it that way is another topic altogether.

          As for threats, that would be wrong, period, regardless of the merits of her trademark. However, sadly, it is also expected from anything on the internet. I don’t think there is anything particularly unusual about the author receiving threats over this, even if I think that that’s wrongful. That is a societal issue that has no bearing on this topic.

          I don’t think anyone was completely making things up; they were perfectly reasonable interpretations of trademark law and the author’s actions, not to mention the litigious history of many such one-word trademarks. Just look at “edge”. As for “perpetuating incorrect information”, it depends on context.

          Namecalling and being mean are just part of criticism and social repercussions. I have no problem with that per se.

          To say it’s not a trademark problem is ignoring the fact that people have enforced trademark beyond what is reasonable or even set out under the law.

          I’m not convinced that the word “Dark” should’ve been trademarked for the series. It wasn’t a good idea, and I don’t see what benefit she could’ve gotten from the trademark if it was enforced as you say it would be. Just because it’s “standard” for the name of a series to be trademarked doesn’t mean that doing so is proper or a good idea. You’re right that it’s about branding and customer confusion, but I’m not convinced that either of those things would be improved by trademarking the word “Dark” outside of a specific logo or font.

          reply to this | link to this | view in chronology ]

  • identicon
    Sheila_the_Author, 14 Dec 2019 @ 6:05am

    Dear “Anonymous Coward” your level of animosity makes me want to offer you a hug a pat on the back and a “bless your heart”.
    Do you want people flogged? Their livelihoods taken away? What do you think is an appropriate punishment for a perceived misstep? Because this author NEVER threatened a soul. Or intended to.
    If you make apologies meaningless, then why ask for them in the first place?
    At some point, someone needs to offer some kindness and forgiveness. I see that’s not your thing, but how would the world change if that was our reaction by nature instead of hate?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Dec 2019 @ 1:42am

      Re:

      Ah, the good old "saying sorry means I'm free of whatever punishment, penalty or restitution I need to undertake because I made a silly decision that had a chance of ruining someone else" excuse. Because that obviously didn't get old after all the dead grandmothers and children the RIAA sued.

      If forgiveness instead of hate was the default setting for you lot, IP enforcement as we know it wouldn't exist.

      reply to this | link to this | view in chronology ]

      • icon
        Sheila_an_Author (profile), 18 Dec 2019 @ 3:00pm

        Re: Re:

        What punishment, penalty or restitution should be given to someone whose only mistake was the way her attorney presented the trademark application and how that was perceived? She didn't break any laws. She didn't harm any person or company. No one was hurt. Right away she corrected what was upsetting people and apologized for upsetting them.
        Other than that, what do you feel is fair?
        Wanting to hurt someone just because you're mad doesn't mean they deserve that.
        "I made a silly decision that had a chance of ruining someone else" is absolutely incorrect. You are wrong. That was never going to happen. It couldn't. That's not how trademark works. People jumped to conclusions and this author is paying the price.
        Forgiveness should always be the default before hate.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Dec 2019 @ 8:23pm

          Re: Re: Re:

          So don't blame the content producer, blame the lawyer who scammed the client? Yeah, not buying it. Paul Pilcher tried that excuse and nobody bought it.

          When you're given a nuke like intellectual property law you damned well better be responsible for how that weapon is wielded.

          reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 17 Dec 2019 @ 5:59am

      Re:

      Dear “Sheila_the_Author”,

      First of all, just to be clear, “Anonymous Coward” is the default name for people posting without signing in.

      Second, when replying to someone, it improves things to use “reply to this” for your comment rather than starting a new thread, especially when responding to an AC.

      reply to this | link to this | view in chronology ]


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