television show name
 

I am in the process of producing a television show and the name I have picked out is the same as a video that I found on a google search. I went to the uspto website and did a search and found nothing about that name being trademarked or registered. The video itself has a copyright symbol and is a registered trademark of another company. Because the name of the video is not trademarked or registered, is it safe to name my television show that name?

To be "safe" you need to do a full trademark search and review. The PTO is a good place to start, but is not always up to date.

Contact a good IP lawyer and they will help you.

Titles can not be copyrighted, but certain phrases may be trademarked.

I am not a lawyer, but there are several who drop in on the boards and will say much the same.

Re: television show name
 

<<<-- Originally posted by Gale Smith : I am in the process of producing a television show and the name I have picked out is the same as a video that I found on a google search. I went to the uspto website and did a search and found nothing about that name being trademarked or registered. The video itself has a copyright symbol and is a registered trademark of another company. Because the name of the video is not trademarked or registered, is it safe to name my television show that name? -->>>

Registration with the PTO is not required to accrue trademark protection. Common law rights are recognized and enforced under Section 43a of the Lanham Act.

Paul,

I thought you once said that trademark registration is a prerequisite to suing for infringement?

Paul-

Is what you're saying, is that the title of that video is trademarked/copyrighted and I cannot use that name for a television show? Thanks.

What Paul is saying, is that you need not register a trademark to have it PROTECTED. This is the same as registering a copyright. A work is copyrighted the moment it is fixed in a tangible expression. You have rights from that very moment. Registering the copyright, makes it MUCH easier to get damages, and specific infringement damages. Much the same happens with a trademark. A trademark may be established once it has developed a relationship with the public, whether or not it is registered. Thats why a thorough search is necessary for registration... to make sure no one else is already using a similar mark somewhere else. Prior use can trump registration.

No, I am not an attorney, and Paul can feel free to clarify this when and if he is not to busy. But I think that's the gist of it.

One more thing, titles can not be copyrighted... but they may be trademarked, especially when they represent an origination point for a product. Think "Star Wars", "Star Treck", etc.

Richard is pretty close. Neither a copyright nor a trademark needs to be registered for protection to accrue. However, in order to sue for copyright infringement a registration must first be obtained, and damages are limited until the registration is obtained. Trademark, on the other hand, can be enforced and full damages obtained without registration -- the advantage of registration is certain legal presumptions that attach. Trademark rights result from use of the mark in commerce -- these are called common law rights. There used to be something similar for copyright, but these were eliminated in 1978 under the revised Copyright Act.

As a rule, titles cannot be protected either by copyright or trademark. However, some titles can function as tradenames or service marks -- Richard gave a good example. Unfortunately, there is no way to answer the question of usability based on the nominal description provided in a post to this forum, i.e. I'm not saying you can use the title or not -- there's just no way to say without knowing a lot more about the video and what the OP is planning to do.

Thanks Paul. I hesitate to jump in on these comments, based on what my wife has explained to me. But I know how busy you lawyers can be, and I hate to see these questions go unanswered, or worse - misguided - for very long.

So now you and I are "neighbors" - having relocated to San Mateo. (My wife is working for a firm in Palo Alto).

Richard