Author Cries Trademark Infringment On Book Reviews Of A Different Book

from the holy-crazy dept

Thu, Sep 13th 2012 10:35am — Timothy Geigner

Maybe you're like me and you thought that trademark stories didn't get much crazier than apparent confusion between products like ice cream and hardcore pornography. Or maybe you thought that dead half-chef, half-spy zombies crying foul over facts would win the nutso championship. Well, my sweet little innocent lambs, I give you the following story about a comic book author ~~suing~~ threatening to sue book review websites for reviewing a book by another author that had the same title.

Jazan Wild, comic book creator, is suing both Harper Collins for publishing Carnival Of Souls by Melissa Marr as well as a bunch of websites that reviewed her book. Not for copyright, mind you, but trademark, because Wild released a comic book called Carnival of Souls in 2006. Wild is claiming that the publisher is intentionally trying to cause confusion between a new fantasy novel and a comic book released six years ago. If you think this sounds crazy, The Digital Reader agrees.

Any sane person would have put a few minutes thought into the matter and realized that such an obvious phrase as Carnival of Souls would likely have been used as a title many times before. In fact, Bookfinder turned up at least a couple dozen different books, movies, TV episodes, and more – some of which dates back to 1962. And if you look inside books, Google says that it found the phrase no less than 5600 times (with some duplication, obviously).

Now, if that were the end of the story and Wild was only bringing suit against Harper Collins, we could all sit back, take a sip of our coffee and have a nice guffaw at the silly guy waving his arms around needlessly. Unfortunately, Wild is on a mission here to break the record for most wrong thoughts over a single issue. That's the only explanation I have for why he would then send cease and desist letters to websites that reviewed Marr's novel, claiming they were infringing on his trademark as well. Just to be clear, these sites are only posting reviews, no mention of Wild's works (why would they?), no exerpts from the novel or the comic book. Just a review of a novel with an apparently common title.

To whom it may concern,

This is a cease and desist. “Carnival Of Souls” is a trademark owned by Jazan Wild and Wild alone has the exclusive right on the United States of America to use the mark in classes 16 and 41 of which a novel is included. Posting a chapter from a novel using this mark is a willful and malicious infringement of Wild’s mark. Please remove.

The Trademark Infringement:
http://bookalicious.org/2012/09/review-carnival-of-souls-by-melissa-marr/

Hypothetical time. Let's say I broke into your house, tied you up to a chair, put a gun to your head, and told you that you had to come up with the perfect way to derail an argument about customer confusion of the title of a fictional work in the next thirty seconds or I was going to kill you. Could you come up with a better way than including in your C&D letter the URL of the supposed trademark infringement when that URL mentioned that the damned book was by a different author? I don't think you could.

More to the point, pissing off sites that review creative works when that's the business you're in is treachorous ground. But, at least it's entertaining. So here's to you Jazan Wild. May your crazy never cease to entertain us all.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: book review, carnival of souls, jazan wild, melissa marr, trademark
Companies: harper collins

30 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 13 Sep 2012 @ 10:46am

Less Crazy than Ice Cream Porn
Seems to me the real error here was granting him a trademark on a common phrase/title to begin with.

Given that he got it, his attempt to enforce the trademark doesn't seem obviously crazy.
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2012 @ 10:49am

dont know who was his mentor but the idiots in the entertainment industries would be good guess. they issue takedowns of files when they have already taken down the sites. talk about brainless!!
[ link to this | view in thread ]
Rich, 13 Sep 2012 @ 11:00am

I think he is trying to twist an already ridiculous law. He has a trademark for a book series (dumb enough), and trying to sue someone for using it for a book title. Something you can't trademark, nor copyright.
[ link to this | view in thread ]
Trails (profile), 13 Sep 2012 @ 11:02am

Suing or Just Sending Dumb C&D's?
From the linked article it seems the suit is against Harper Collins only, and the reviewers just got ridiculous C&D's
[ link to this | view in thread ]
gorehound (profile), 13 Sep 2012 @ 11:25am

Sounds like this guy is a fucking asshole who himself ripped off that Title from a really awesome cult film called Carnival of Souls.i first saw that old B/W Film in the mid 1970's at a Horror Film Fest.Great kind of unknown film you should check out if you like older horror/supernatural films.
As far as this Author I would just ignore him and never go near whatever his whining ass comes up with.
[ link to this | view in thread ]
Deirdre (profile), 13 Sep 2012 @ 11:35am

He is claiming willful and malicious trademark infringement on the bloggers which is different from innocent infringement. This suggests that the bloggers should have known about his trademark. I know I always check the US trademark on books I read in case I might want to know if it is owned by some crazy person before I post a review in which I-- oh, might mention the name of the book.

I wonder if he C&D Amazon and B&N?
[ link to this | view in thread ]
Baldaur Regis (profile), 13 Sep 2012 @ 12:00pm

Crazy is a good thing!
I'm sure after their recent dealings with the DOJ that the Harper Collins lawyers needed a good laugh.
[ link to this | view in thread ]
BS Simon, 13 Sep 2012 @ 12:12pm

Not his first rodeo.
This is also the guy that sued NBC over the last season of Heros being a rip off of this same book.
[ link to this | view in thread ]
sharon88 (profile), 13 Sep 2012 @ 12:19pm

Answer from Wild's attorney
I am the attorney representing Mr. Wild in the trademark infringement lawsuit that is the subject of many postings on this blog. Many of the questions raised by some of the postings will be addressed by the Court in that lawsuit in due course. I would, however, like to clear up possible misconceptions.

First of all, to clarify Mr. Wild�s recent emails to �Pam� of �bookalicous.com� and a few other reviewers, Mr. Wild was not threatening to sue any of these persons. He only intended to make them aware of his trademark rights in CARNIVAL OF SOULS, to minimize the confusion he has already suffered with respect to HarperCollins� conscious choice to use his registered trademark for its new book (soon to be a series of books) by Melissa Marr. Mr. Wild has no intention of suing bloggers and reviewers and we apologize for any misunderstanding in that regard. (We especially thank �Pam� for her 9/11/12 comment on �bookalicious.com� that Mr. Wild has been �very forthcoming and nice.� That is, of course, the tone Mr. Wild wishes to strike.)

Mr. Wild did not want to sue HarperCollins and he did everything possible to avoid it. Mr. Wild made HarperCollins aware of his United States Trademark Registration No. 3,921,658 for CARNIVAL OF SOULS in June of this year, well before HarperCollins was set to publish the book, and politely asked HarperCollins to simply change the name. He sent many follow up emails to HarperCollins and/or its attorneys trying, in good faith, to resolve this matter with HarperCollins without the need for litigation, at a time when it would have been relatively easy for HarperCollins to change the name to another perfectly good title. Unfortunately, Mr. Wild�s suggestions fell on deaf ears. This left Mr. Wild the choice to either protect his legal rights or just give up. After spending over eight years building a business using Mr. Wild�s CARNiVAL OF SOULs registered trademark, Mr. Wild chose to protect his legal rights.

The commenters who pointed out that one cannot trademark the title of a book are correct. However, the United States Patent and Trademark Office makes a distinction between the title of a single work (which may not be trademarked) and the name of a series of works (which can be trademarked). Mr. Wild�s CARNIVAL OF SOULS trademark is for a series of comic books, graphic novels and novels, not the title of a single book. There is simply no legal question that trademarks may properly be granted for series of books. There are currently over 6000 registered trademarks for series of books or novels. HarperCollins itself has 100 or such trademark registrations for �series� of books or novels.

HarperCollins� bluster that Mr. Wild�s suit is �completely without merit� etc. needs no response, since the appropriate forum for such arguments is the Court. I do note, however, that HarperCollins� contention that Mr. Wild has �no exclusive right to [use of CARNIVAL OF SOULS] as the title of a creative work� is a misstatement. As discussed above, Mr. Wild�s registered trademark covers a series of comic books, graphic novels and novels. It is not just the �title of a creative work.�

Some postings expressed the opinion that Mr. Wild should not be entitled to his CARNIVAL OF SOULS trademark because the phrase �carnival of souls� existed prior to Mr. Wild�s adoption of it as a trademark for his series of novels and graphic novels. Under trademark law, however, it is not necessary for a trademark to be a uniquely coined term, like KODAK. To the contrary, many well-known trademarks are for otherwise common words or phrases used in connection with various goods. For example, APPLE is the name of a fruit but is also a well-known registered trademark covering computers. Wendy�s International, Inc. has a trademark registration for �WHERE�S THE BEEF?� Reg. No. 1,410,896, for �restaurant and carry out restaurant services,� even though this is a common phrase, not invented by Wendy�s. One of HarperCollins� own trademark registrations for a series of books is �I CAN READ!� (Reg. No 4,163,123), which I believe most people will agree is a common phrase.

Some postings expressed the opinion that Mr. Wild should not be entitled to his CARNIVAL OF SOULS trademark because there was a 1962 movie by the same name, a remake of that movie and/or a KISS album by that name. That is also not how trademark law works.

Trademark registrations are classified into 42 different �International Classes,� each covering different types of goods or services. It is very common and perfectly acceptable for the same word or phrase to simultaneously exist as a trademark in more than one International Class, for different goods or services. For example, the word LIFECYCLE (itself a common word) is a registered trademark in International Class 21 for bottles (Reg. No. 3, 981,589); in International Class 19 for plastic and wood composite building materials (Reg. No. 3,120,123); in International Class 9 for computer software (Reg. No. 2,954,623) and in many other classes, for different goods and services, all owned by different companies.

Mr. Wild�s trademark registration for CARNIVAL OF SOULS is in International Class 16 (comic books, graphic novels and novels) and in International Class 41 (for multi-media). By contrast, movies (such as the 1962 movie) and recorded music (such as the KISS album) are generally classified in International Class 9. In the lawsuit, Mr. Wild is only seeking to enforce his trademark against HarperCollins� infringing use in connection with its novel (which is to become a series of novels), the same goods covered by Mr. Wild�s CARNIVAL OF SOULS trademark registration in International Class 16. This is an appropriate exercise of Mr. Wild�s legal rights, notwithstanding prior uses of CARNIVAL OF SOULS for the titles of movies or record albums, which are for different goods in different classes.

As to the �Buffy the Vampire Slayer� use of �Carnival of Souls� in the title of one book in the �Buffy the Vampire Slayer� series, though that use does not predate Mr. Wild�s use, it did not present the threat that HarperCollins� massive promotion of its CARNIVAL OF SOULS novels (soon to be a series) has. (Incidentally, the name BUFFY THE VAMPIRE SLAYER is itself the subject of many trademark registrations owned by Twentieth Century Fox, including Reg. No. 2,480,081, for a dramatic television series.)

For those who are interested in getting the facts, the legal papers in this case are available on �pacer.gov.� (You need to set up an account, though the fees are usually only a few dollars). Click �Find a Case� and �search the pacer case locator.� Once you log in, click �civil� and then enter �8:12-cv-01191� as the �case number.� (The case name is �Jazan Wild v. HarperCollins Publishers LLC).� The facts might even change the opinion of some of the posters. Of course, ultimately, the facts are what matter in Court.
[ link to this | view in thread ]
Zos (profile), 13 Sep 2012 @ 12:35pm

Re: Answer from Wild's attorney
oh wow, look, we got the man's official parasite to crawl out of his hole to come educate us poor sods.

I wonder how many billable hours went into writing this rebuttle.
[ link to this | view in thread ]
Dark Helmet (profile), 13 Sep 2012 @ 12:35pm

Re: Answer from Wild's attorney
First, thanks for showing up and for your comment, although it's probably worth noting that this site writes a great deal about trademark law.

Simple question: since trademark is chiefly about avoiding customer confusion, and in fact reports suggest that INTENTIONAL confusion is what your client is alledging HarpCo is engaging in (which I find laughable), would you care to point me to the written-word novel that Mr. Wild has released under his trademarked series name? I can only seem to find comics (graphic novels), and unless there's an actual book, this doesn't pass the moron in a hurry test.

Additionally, while you may claim that the C&D letters were only meant to inform sites of his trademark, that could've been done in simple writing. C&D letters are by definition a threat of legal action. The C&D letters he/you sent accuse those sites of infringement (falsely) and demanded a takedown (which they aren't obligated to do). They are backed by the threat of legal action. So, unless you and/or Wild are going to apologize and say you never should have sent those C&Ds to begin with, I don't know that you've added much on that front....
[ link to this | view in thread ]
Dark Helmet (profile), 13 Sep 2012 @ 12:37pm

Re: Re: Answer from Wild's attorney
"I wonder how many billable hours went into writing this rebuttle."

Hopefully not many, considering this is a copy/pasted form response he's sent to other sites already.

http://robot6.comicbookresources.com/2012/09/jazan-wilds-attorney-clarifies-cd-demands-e xplains-lawsuit/
[ link to this | view in thread ]
Dark Helmet (profile), 13 Sep 2012 @ 12:38pm

Re: Re: Re: Answer from Wild's attorney
And now I see why. That was a Techdirt reader pasting the response from elsewhere, not the lawyer showing up in the comments, so we both got that one wrong.

Apologies!
[ link to this | view in thread ]
Spaceman Spiff (profile), 13 Sep 2012 @ 12:41pm

Then there is this
http://en.wikipedia.org/wiki/Carnival_of_Souls

I think he is trumped by earlier art, and should change the name of his comic!
[ link to this | view in thread ]
Rich, 13 Sep 2012 @ 1:05pm

Re: Answer from Wild's attorney
A *real* attorney would not waste time presenting his case on an Internet forum. Did you bill your client for this time?
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2012 @ 1:08pm

Clearly this guy is just flaying around and hoping someone will give him some money, either that or he's simply not sane. It's to be hoped he will end paying attorney fees for all involved.
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2012 @ 1:16pm

Re: Answer from Wild's attorney
I think your client might have an issue, and you might check the status of that trademark. From what I can find (http://trademarks.justia.com/search.php?q=carnival+of+souls your client does not have the trademark on the graphic novels, but rather on 'downloadable motion pictures and television shows about drama, carnival themes, fantasy, supernatural themes.' The trademark on 'Comic books; Graphic novels; Novels' is listed as Jason P. Barnes.
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2012 @ 1:36pm

Re: Answer from Wild's attorney
Picking a title that's already famous, even if it isn't currently trademarked, and then expecting everyone to ignore the connection to the far more famous, previously-created property is the height of arrogance.
[ link to this | view in thread ]
Keroberos (profile), 13 Sep 2012 @ 1:52pm

Re: Answer from Wild's attorney
I think this letter defeats it's own case.
The commenters who pointed out that one cannot trademark the title of a book are correct. However, the United States Patent and Trademark Office makes a distinction between the title of a single work (which may not be trademarked) and the name of a series of works (which can be trademarked). Mr. Wild�s CARNIVAL OF SOULS trademark is for a series of comic books, graphic novels and novels, not the title of a single book. There is simply no legal question that trademarks may properly be granted for series of books.
Since the offending product in question is a single book, I don't see how a trademark on a series title can come into play.
[ link to this | view in thread ]
DogBreath, 13 Sep 2012 @ 1:56pm

This comment seems to grasp the basic facts that the case will fail
From: bookalicious.org/2012/09/cease-and-desist/

Sep12
Adam

A �Carnival of Souls� sequel has been announced � called �Theatre of Deceit� � for next year. A few bloggers have referred to the �Carnival of Souls series�. There appears to be no evidence, however, that Marr or Harper Collins are calling it the �CoS series�, just that it is a series, and that the first book in that series is �Carnival of Souls�. Having now read extracts of both, and looked at the Heroes case reports, I can�t help but suspect that Mr Litigious simply needs to get a life.

So, unless Trademark prevents anyone from producing a series of novels in which one of the titles happens to be "Carnival of Souls" (even the first one), Wild and his attorney won't have even a single leg between them to stand on.
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2012 @ 1:58pm

Re: Re: Re: Re: Answer from Wild's attorney
Sharon is his wife, as evidenced on ComicBookResources:

http://robot6.comicbookresources.com/2012/09/claiming-trademark-infringement- jazan-wild-sends-cd-letters-to-reviewers/#comment-107201
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2012 @ 2:00pm

Re: Re: Answer from Wild's attorney
Jazan Wild is his pen name. Jason Barnes is his real name.
[ link to this | view in thread ]
Anonymous Coward, 13 Sep 2012 @ 4:23pm

Re: Re: Re: Answer from Wild's attorney
Thanks, actually. I didn't know that, and didn't see it listed anywhere. It does make me wonder if you aren't supposed to use your legal name for such things, but it's probably okay.
[ link to this | view in thread ]
MrWilson, 13 Sep 2012 @ 8:00pm

Re: Less Crazy than Ice Cream Porn
I doubt he's trying to enforce his trademark. He's probably just trying to drum up press for his comic book which probably hasn't sold well recently.
[ link to this | view in thread ]
MrWilson, 13 Sep 2012 @ 8:06pm

Re: Re: Less Crazy than Ice Cream Porn
A quick Google search of the phrase "carnival of souls" turns up a movie, the book in question, and a band in the first page. I didn't find Wild's work until page 4.
[ link to this | view in thread ]
Prisoner 201, 13 Sep 2012 @ 11:20pm

Re: Answer from Wild's attorney
A good start, but before I see evidence of a Carreon Effect I won't invest in popcorn.
[ link to this | view in thread ]
PaulT (profile), 14 Sep 2012 @ 12:36am

Carnival Of Souls? Like the 60s public domain movie that was remade by Wes Craven with the same title, 10 years before this comic book was published? Yeah, *that's* an original title...

Yeah, I know that trademarks could be applied separately in publishing as opposed to movies, but still...
[ link to this | view in thread ]
Niall (profile), 14 Sep 2012 @ 4:40am

Re: Then there is this
So if there can be three albums with this title (according to Wiki), how is it 'confusing' to have more than one written form?
[ link to this | view in thread ]
That Anonymous Coward (profile), 14 Sep 2012 @ 5:15am

Re: Re: Answer from Wild's attorney
You have a butthurt douchebag and a wacky wife... are we sure its not just them again?

Any moment now there might be another post detailing how this is just a grand conspiracy to ruin his good name for taking a popular title and trying to lock it up as his own forever.

Pop the corn... I sense drama coming.
[ link to this | view in thread ]
art guerrilla (profile), 14 Sep 2012 @ 12:11pm

Re: Answer from Wild's attorney
"Of course, ultimately, the facts are what matter in Court."

bwa ha ha ha HAAAAA...
oh, that were a knee-slapper, all right ! ! !
spoken like a truly corrupted sycophant of a failed system...

art guerrilla
aka ann archy
eof
[ link to this | view in thread ]