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Originally Posted by Elfwreck
It's my understanding that you don't have to defend copyright, but you do have to defend trademark or lose it.
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Yes and no. As I understand it, you do have to defend copyright, but what is required to do so is less stringent than trademarks. (You may recall Xerox's continual reminders to everyone that Xerox was a registered trademark, precisely to prevent xerox from slipping into common use as a verb meaning "make a photocopy of", whereupon they would lose their trademark.)
Trademark is also much harder to get. When you file for a trademark, the first thing that happens in the US is that the government says "No", and requires you to demonstrate why your mark is unique and deserving of trademark status. Once you've done
that, the issue is thrown open to public comment, and anyone else can throw an objection monkey wrench into the works.
Getting a copyright is easy. It exists automatically on completion of the work. Registering a copyright is easy. Send copies along with the fee to the Library of Congress. You don't have to do it to
have copyright, but you can come down a lot harder on infringers if you've done so.
Getting a trademark, and defending it once you have is another matter. (The same rules apply to service marks, which cover services in the way trademarks cover goods.)
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A copyright owner can give permission, tacit or explicit, for use of their content to any number of people without losing the right to restrict it from other uses. If fans make a magazine & sell it, and Kurtz doesn't stop them, that does *not* give Universal Pictures any right to make a movie without permission.
The right to control usage includes the right to grant consent at will.
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Sure. But Kurtz
didn't give consent, and couldn't simply ignore the infringement. As far as I know, she was required to go after the fans. Filing suit is not something she
wanted to spend time and money doing. Sufficient for copyright that you go after infringement you are aware of. You aren't expected to spend all your time looking for infringement - only to make an effort when you become aware of it. But as far as I know, if you are aware of infringement and
don't take action, you can jeopardize your rights.
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Trademark is different--because the purpose of trademark is (ostensibly) to avoid customer confusion, if you don't stop a tm'd property from being used w/o your consent, you have allowed public understanding of the mark to include products that aren't yours, and lose your right to demand exclusivity for that trademark.
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Correct. So folks with trademarks tend to spend a lot more time and effort making sure there
isn't infringement, like looking at new trademark filings in case the filer has unknowingly done something too similar to theirs. It's why you do a trademark search as part of filing.
It can be grimly amusing. I use the Mozilla Firefox browser. Firefox is the third name it has been called by. It was originally called Phoenix, and then Firebird. In both cases, the Mozilla folks had inadvertently picked a name already used by another open source software project, and infringed a trademark. Oops! It resulted in a popular extension called FireSomething, with the slogan "All your branding are belong to FireSomething!", that would randomly change the name displayed on the title bar, using a user configurable set of prefixes and suffixes. Mozilla PlasmaPorpoise, anyone? Ben Goodger, who used to be a lead Firefox dev and is now at Google, is reported to have fallen off his chair laughing the first time he saw FireSomething. (Unfortunately, Firefox 3.6 beta 5 breaks Firesomething...
)
But a writer isn't expected to scan all new magazine story publications or books looking for infringement.
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Dennis