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Jon Glaser

8 Years Ago

Legal Right To Use Trademark Name In Title Of Photo

I have a photo that I titled " luminous lands" and just found out that someone trademarked " the luminous land". Do I have to change title?

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JC Findley

8 Years Ago

Nope

Trademarked names specifically apply to things that are of a similar nature. For instance, you cannot start an airline with the name Southwest but that doesn't mean you cannot start myiad other businesses with that name so long as it isn't an airline nor trademarked by a different company doing the same thing. It absolutely does not apply to art titles.

For that matter, I am pretty sure art titles cannot be copyrighted either. I know movies often share the same name as do songs at times.

 

David Bridburg

8 Years Ago

JC of course has the only and final word, but....

Apple had to pay the Beatles for the name. Both wanted to use the word Apple
as a corporate title, which would be the different.

And titles are not copyrightable.

Copyright law being different from trademark law.

Dave

 

JC Findley

8 Years Ago

Not my final say on this one, it is a court thing.

I am not an attorney and will not give legal advice but I do know that trademarks do not prohibit the use of a word except in ways that it may be interpreted to apply to the business/person that trademarked it.

 

Jon Glaser

8 Years Ago

So , it turns out the trademark was filed in December 2014 and registered feb 2015. He has been doing business as "the luminous lands" since 2006. MY copyright was december 2013. His attorney and I spoke, he told me that i was infringing on his trademark even though I am registered. Titles can not be copyrighted just the image.

 

Kathleen Bishop

8 Years Ago

Many books share the same title and they are registered. Not sure if that is applicable to art.

 

Joseph C Hinson

8 Years Ago

If a lawyer has contacted you, I'd consider going to a lawyer myself and not an Internet forum.

 

Melissa Bittinger

8 Years Ago

sounds like he's trying to scare you into changing the title.

 

Melissa Bittinger

8 Years Ago

Did you change the name? This is 'Luminescent Lands', did you change it to that from Luminous or has it always been Luminescent?

Photography Prints

 

Bradford Martin

8 Years Ago

It seems several people are using Luminous Landscape. I wonder if he is going to go after them also.

 

Melissa Bittinger

8 Years Ago

I think it's just a scare tactic with no real legal balls behind it but most people would probably fold just by having an attorney talk to them...attorney could just be a 'friend' of his too.

 

Jon Glaser

8 Years Ago

Melissa, Yes this is the image that I changed the name on.. If I cave and change name, then whats to stop anyone from doing the same regarding one of my images or anyone's image titles..

Im really having a hard time being bullied into this.. ITs the principle, and thats not right! And, there are a few other sites etc with the same name too! So, is he going after them?

 

Greg Jackson

8 Years Ago

"...there are a few other sites etc with the same name too! So, is he going after them?"

I would contact them and ask them if they've been contacted by anyone to change the name they're using.

 

David Bridburg

8 Years Ago

The lawyer contacted you is nothing.

My sister has a writing school in Boston, largest of its kind in the world.

Early on a similar writing school in NYC, the owner of that school saw his website and my sister's website ran
down the same list of classes offered. He got a lawyer and offered to sue my sister based on that list of classes
offered as copyright infringement. At first my sister was rattled. All of us told her not to respond. The other guy simply walked away.
BTW, he is not in business today. He probably alienated so many people with his send in the lawyers attitude. It was
a simple list on a website. Imagine. Classes: Poetry, Screenplays, Novels,........

Threats and doing something are quite different. Lawyers issue empty threats all day long. For the lawyer to take
you to court will cost the client money. Do nothing and stop discussing it at all with the other guy's attorney.

proper disclaimer I am not a lawyer, this is just my family's experience.

A different do nothing, in the towns around where I live, businesses here are not allowed to post extra signage. But
in one restaurant I worked in the owner put a brightly lit "Open" sign in the front window. The town issued an order to take down the signage.
He ignored the order. It seems the town issues those orders all the time, but what the restaurant owner does just within the glass of
his own shop v just outside the glass are two different things.

Dave

 

Mike Savad

8 Years Ago

the other company would have to fight it to keep it. i think it would be hard to prove though because its not like they made up a name. i once used oceaneering as a keyword. and it just happened to be a trademark some place else.

however if your title is something well known you can get yelled at. i named one thing goofus and gallant, and that was enough for a lawyer to contact me. it was an easy fix, but it was one of those things.

---Mike Savad
MikeSavad.com

 

Jon Glaser

8 Years Ago

I can kinda understand if he was first, but he only registered in February of 2015 as a trademark. I was copyrighted before him. So I think he does not have a right to do it. I received an email from the photographer that has the domain name, he feels the same way. He paid for domain name and now some guy can go ahead and force him to give up the domain name cause he doesn't have the trademark rights.

 

David Smith

8 Years Ago

I would have told the lawyer to go pound sand.

A simple google search of "the luminous land" in quotes brings up dozens of hits for titles and descriptions predating his trademark.

Different story if it was the name of your photography business.

 

Melissa Bittinger

8 Years Ago

Looks like he has three trademarks registered including 'REAL LANDSCAPES IN TRUE-COLOR AND BLACK AND WHITE'......come on now! really?

https://trademarks.justia.com/category/personal/2014/july/7/

 

Suzanne Powers

8 Years Ago

You do not need permission to include song titles, movie titles, TV show titles—any kind of title—in your work. You can also include the names of places, things, events, and people in your work without asking permission. These are facts.

For questions and further reading: http://janefriedman.com/2012/01/23/permissions/

The author of this post is Jane Friedman who teaches digital media at the University of Virginia.

I questioned recently whether I could put a movie title or book title on artwork. I assumed I could not because of a discussion last month in the forums with no definitive answer. I realize now I can and you can too.

Photography Prints

JC, you probably tried to close my post, I got confused and thought I did! Just say something like, we already have a thread about this so I know.

This is not trademark but titles of movies and books.

 
 

Jon Glaser

8 Years Ago

Melissa, I saw the link,,hmmm,,,I also have exchanged emails with someone that owns the domain name for one of those trademarked items. So, McGrew can force others to give up the domain names etc?

 

Melissa Bittinger

8 Years Ago

I just don't know...I'd like to make an argument that he stepped on their use but I have no idea. Beyond my scope of knowledge.

 

David Bridburg

8 Years Ago

Jon,

He can cheaply get a lawyer, perhaps his brother in law, to call people. To go to court? Not at all. He wont.

And my two cent opinion, which is more than what you have paid to hear it, Suzanne is right. You can use the title.
I have seen some of this elsewhere in my readings....on copyright.....

The whole thing swings on economics. From whether he can afford a lawyer to more importantly what the trademark is worth.

In his hands I somehow doubt it is worth much. With a trademark there is no time limit, but the moment you are not making
any money off the trademark it goes back into the PD. Others can then claim it, but probably not for titles of paintings. It has
be more strictly for corporate titles.

BTW Apple and the Beatles Apple never stopped any artist from say titling an image "My Apple". Never.

Dave

 

Joseph C Hinson

8 Years Ago

Speak to a lawyer for law advice!

 
 

Jon Glaser

8 Years Ago

Update:

I sent his attorney a letter with my arguments, weak trademark, he registration came in February of 2015, othe examples of it being used.

Five days later I received an email from him stating his case that because my ranking on Google is higher, that his clients my get confused and go to my listing instead of his. I get that! He asked me to do the right thing! I have not responded.

Is it my fault that I have ranked higher than him. It's been up longer obviously and even though his site has more content, Google ranks my image higher be use of their interpolation. That's not my fault, it's my benefit but I didn't cause that. He claims to have been using the name since 2006, but then he should be ranked higher than me. Correct?

 

Mike Savad

8 Years Ago

his whole case can't hinge on a google ranking, which can change any day, at any time for any reason - and it will be a different result for every person as well. if he did anything to help his SEO, then he should be ranking higher than yours, he really should do something about that. and not simply attack everyone that has luminous in the title. because there will always be more.

he should talk to google not you. but that's for the lawyer to decide.

i don't know what the right thing is, you could change your title, but i don't see why you should. trademarks have to be fought for, but if its just the case of a poor ranking... well i think its just too bad. maybe he's spamming something heavily and he was dinged for it.

---Mike Savad
MikeSavad.com

 

Mike Savad

8 Years Ago

when i typed that phrase in - i got luminous landscapes, books on amazon, rock guides and a number of other things.

---Mike Savad
MikeSavad.com

 

Joseph C Hinson

8 Years Ago

I'd get a lawyer.

 

Floyd Snyder

8 Years Ago

Rather or not I consulted an attorney would depend on two things, how much real value is there in holding onto that title and how how much is the lawyer going to cost.

Not an attorney, but it seems that the next step for him would be is to serve you with some sort actually leagal paper from the courts. Until then, if I wanted to be hard nosed about it, I would call his bluff and find out if it really is a bluff.

When you get served, that is when you will have to make the decision as to the real value of hanging on to that title.

If the title is of not real value, I would just change it and avoid the hassle. I don't care if it is a bluff or not. If the title is lacking in real value, you may have already put more time and effort into it then what it is worth. Like is too short as it is.

In the mean time, if there is a chance that lawyers are going to get involved, I would be real careful what I said to him. I would not offer any information at all. Once the law dogs start tearing into this, they will use everything you say against you if there is any way at all to do so.

 

Jon Glaser

8 Years Ago

Oh,,he did tell me that he was not going to pursue this thru an attorney because ; 1) his attorney did not know what the outcome would be; 2) he did not want to spend money on a lawyer.

But, Instead of coming at me guns blazing with a threatening letter, why not ask me nicely, one photographer to another..Simple

 

Mike Savad

8 Years Ago

i'm guessing the guy doesn't play poker. since you know he's not suing, its something you can ignore. or as said, just change the name, unless its a huge seller or something.

---Mike Savad
MikeSavad.com

 

April Moen

8 Years Ago

He's using bully tactics to move up in Google page ranking? Don't even consider changing that title! If you do, the little terrorist has won.

 

Jon Glaser

8 Years Ago

I agree April,,,I will send him an email asking him to explain why registered in Feb and not years ago,,,its not my fault I am more adept..He is trying to be a bully. He is trying to bully this other guy that owns the domain name. He is trying to force him to give up the domain name for free. But no dice.. If I own domain name COKE,,im going to sell it to you..

 

Greg Jackson

8 Years Ago

I'd just quit corresponding with him. Sounds like he's playing head-games. I think I mentioned it before to get in touch with the other guy he is doing this to, and then send the instigator a combined letter with both signatures, stating that neither of you intend on changing anything.

Not providing legal advice, just my personal views.

 

Edward Fielding

8 Years Ago

I would just ignore it.

We had the Life is Good company after us for simply using the words "Life is good! " in a description of a t-shirt. They own the copyright for using the slogan on products and tees but they can't own the words for every thing.

Basically they just do a Google search, send out nasty letters and then bill their client for their services.

Off to rename one of my images LL.

 

Mike Savad

8 Years Ago

i wonder if you can look up trademarks... because a web url is not a trademark.


---Mike Savad
MikeSavad.com

 

David King

8 Years Ago

There are several David King's that come up in a Google search before me and they are younger than me, can I make them change their name? lol

 

Floyd Snyder

8 Years Ago

"Oh,,he did tell me that he was not going to pursue this thru an attorney because ; 1) his attorney did not know what the outcome would be; 2) he did not want to spend money on a lawyer. "

Well, if that be the case... it is really not even an issue is it? Just ignore the guy. He has as much as told you that he has no leg to stand on.

 

Chuck De La Rosa

8 Years Ago

But, Instead of coming at me guns blazing with a threatening letter, why not ask me nicely, one photographer to another..Simple

Then include this in your response. Let him know that a little nicety would have went a long a way, and ask why he didn't "do the right thing" and ask nice the first time. And since he didn't, you're are going to stop using the name.

 

Mike Savad

8 Years Ago

trump did that. he sued an old man for using his name, despite the fact that other guy was using it for much longer than he.


---Mike Savad
MikeSavad.com

 

Jon Glaser

8 Years Ago

Great idea chuck, I am going to use that in response and question him.

Mike, there are a few websites to look up trademarks. I did. And his business was started in 2006 or 07 , he filed trademark in December 2014 but received registration in Feb 2015.

Update: he has decided to buy the other guys domain name.

 

This discussion is closed.