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Practical IP The Intellectual Property Law Blog

Are Titles of Creative Works Protectable?

Posted in Trademarks

You cannot register a trademark for the title, or a portion of a title, of a single creative work (such as a book, a television episode, a film, a live theatre production, or a phonograph record).  [Interestingly, computer software and computer games are not treated as single creative works.]

However, if the title has been used in connection with a series of creative works (e.g., a series of books, the second edition of a book with significant changes, a periodically issued magazine, a television or movie series, a series of live performances [such as by a musical artist], educational seminars, or a continuing radio program), it may constitute a mark for either entertainment services or educational services.

If you currently have a single creative work, but you plan to create a series of creative works using the same title in the near future, you may file an intent-to-use trademark application for the title and obtain a registration once you have more than one work using the title. 

A portion of a title of a creative work is registrable only if (1) it creates a separate commercial impression apart from the complete title (as indicated by the size, type font, color, and any separation between the mark and the rest of the title); (2) it is used on series of works; and (3) it is promoted or recognized as a mark for the series.  For example, the mark THE LITTLE ENGINE used in connection with a series of books, such as “THE LITTLE ENGINE THAT WENT TO THE FAIR” and “THE LITTLE ENGINE GOES TO SCHOOL,” would be registrable if THE LITTLE ENGINE was displayed prominently on the books and the applicant or others promoted THE LITTLE ENGINE as a book series title.

However, you cannot register a trademark with a changeable or “phantom” element, such as _____ FOR DUMMIES, where the blank line represents a word, geographic location, alpha-numeric designation, date or year, or other component that is subject to change.  Such applications will be refused on the ground that the application seeks registration of more than one mark. (Note: The owners for the FOR DUMMIES series of books were able to obtain trademark registrations for the FOR DUMMIES portion of the title, but they were not able to obtain trademark registrations for _____ FOR DUMMIES.)