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  1. #1
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    Default 4 Questions About Trademarks

    1.) Can you trademark names? I like the names Urza & Mishra & want to pay homage to Magic the Gathering by naming characters, with different surnames, behaviors, roles, and magic, after them.

    2.) How can i check the status of something like a name to know if it's trademarked?

    3.) I'm writing a comic. What do i seek to ensure i have 100% control over my IP? Do i seek Copyright or Trademark? I doubt Patten.

    4.) As i lack the ability to draw, I've hired artists to draw characters. Do i need expressed written consent that i own the characters/comic or by paying for their services that's given to me?

    Thanks for reading & hopefully responding.

  2. #2
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    Default Re: 4 Questions About Trademarks

    Quote Quoting sedaiv
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    1.) Can you trademark names? I like the names Urza & Mishra & want to pay homage to Magic the Gathering by naming characters, with different surnames, behaviors, roles, and magic, after them.
    Yes, character names can be a trademark. For perhaps the most famous example, Mickey Mouse is a trademark of the Walt Disney Company.

    Quote Quoting sedaiv
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    2.) How can i check the status of something like a name to know if it's trademarked?
    You may search the U.S. Patent and Trademark Office (USPTO) site to see if the mark is registered. But be aware that registration is not required to create a trademark. Use of the mark in commerce establishes the trademark. You may well find that the names you wish to use are already trademarks of Wizards of the Coast or its parent company, Hasbro, Inc. Your best bet is to consult a trademark attorney who can run a comprehensive search to see if the names you wish to use are protected by trademark.

    Quote Quoting sedaiv
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    3.) I'm writing a comic. What do i seek to ensure i have 100% control over my IP? Do i seek Copyright or Trademark? I doubt [patent].
    You're right, patent law would not apply to a comic book. Your comic art is protected by copyright the moment you draw it on paper or save the image on your computer (if you are a digital artist). However, registering the work with the U.S. Copyright Office will give you greater protection. Trademarks are different from copyright. Names and symbols that are used in commerce and that identify the source of the goods/services being provided become trademarks. Use in commerce creates the trademark, but again registration with the USPTO will give you greater protection.

    Quote Quoting sedaiv
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    4.) As i lack the ability to draw, I've hired artists to draw characters. Do i need expressed written consent that i own the characters/comic or by paying for their services that's given to me?
    Those artists hold the copyright in their works unless (1) it is a work for hire (which would require a written agreement and that the artists are your employees) or (2) you obtain the right to those works by a written contract. You really should see a copyright lawyer to have a model agreement drafted that you can use to ensure you get the copyright in the works that you commission.

    I suggest you see an IP attorney to help you get all of this right.

  3. #3
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    Default Re: 4 Questions About Trademarks

    I'm hiring artists off websites that ate Work for Hire. Should I still seek a contract, read the ToS, or because of the nature of the website I'm safe?

  4. #4
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    Default Re: 4 Questions About Trademarks

    You (or the lawyer that you engage) should read the ToS of the website from which you hired the artists; those terms might address the issue adequately.
    If the terms don't address it adequately, a written contract is the best way to go.
    Relying on the "nature of the website" without taking further steps to protect your interests seems unnecessarily risky.

  5. #5
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    Default Re: 4 Questions About Trademarks

    Quote Quoting sedaiv
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    1.) Can you trademark names? I like the names Urza & Mishra & want to pay homage to Magic the Gathering by naming characters, with different surnames, behaviors, roles, and magic, after them.
    Be careful how closely you pay homage to those characters. You could be infringing and end up sued.

    Have your IP lawyer advise you.

  6. #6
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    Default Re: 4 Questions About Trademarks

    Quote Quoting sedaiv
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    I'm hiring artists off websites that ate Work for Hire. Should I still seek a contract, read the ToS, or because of the nature of the website I'm safe?
    You need to ensure that the terms of the web site are adequate and binding. You really need an IP lawyer to review it to ensure it will actually give you the rights to the work. Do not assume the site knows what it is doing. For more information, see the Copyright Office publication on works for hire.

  7. #7
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    Default Re: 4 Questions About Trademarks

    I never realized how expensive a Trademark Attorney is. Getting the copyright isn't that bad, $310. But research to see if the names are trademarked by WOTC or Hasbro are hella expensive at $500+.

    Thanks for the help everyone. I'm starting to see why people sell their ideas to publishers like Marvel instead of copyrighting themselves.

  8. #8
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    Default Re: 4 Questions About Trademarks

    Quote Quoting sedaiv
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    I never realized how expensive a Trademark Attorney is. Getting the copyright isn't that bad, $310. But research to see if the names are trademarked by WOTC or Hasbro are hella expensive at $500+.
    If you are expecting to make money from your endeavors it's pretty cheap compared to the cost of defending, and possibly losing, an infringement lawsuit.

  9. #9
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    Default Re: 4 Questions About Trademarks

    Quote Quoting sedaiv
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    Can you trademark names?
    No, because the word "trademark" is not properly used as a verb. A name can, however, be a Trademark (ever hear of Ford?).


    Quote Quoting sedaiv
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    I like the names Urza & Mishra & want to pay homage to Magic the Gathering by naming characters, with different surnames, behaviors, roles, and magic, after them.
    Characters in what? Also note that I know nothing about Magic the Gathering.


    Quote Quoting sedaiv
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    How can i check the status of something like a name to know if it's trademarked?
    You can run a search at the USPTO's website. Note, however, that trademarks may be registered on the state level also and that registration is not a prerequisite to ownership of a trademark.


    Quote Quoting sedaiv
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    I'm writing a comic. What do i seek to ensure i have 100% control over my IP? Do i seek Copyright or Trademark?
    Your comic will be protected by copyright law as soon as it is fixed in a tangible medium of expression. You will not have any trademark rights until and unless you acquire same by putting a product or service into the stream of commerce.


    Quote Quoting sedaiv
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    I doubt Patten.
    Who is Patten, and why do you doubt him/her?


    Quote Quoting sedaiv
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    As i lack the ability to draw, I've hired artists to draw characters. Do i need expressed written consent that i own the characters/comic or by paying for their services that's given to me?
    The artists you hire will own the copyrights in their works unless those works are considered "works made for hire" under the Copyright Act. That term is defined in section 101 of the Copyright Act. I suggest you read the definition carefully and also read the definitions of the other terms used in that definition. I then suggest that you carefully read the laws about ownership and transfer of copyright.

    Quote Quoting Taxing Matters
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    Those artists hold the copyright in their works unless (1) it is a work for hire (which would require a written agreement and that the artists are your employees)
    That's not quite accurate as phrased. If an employee creates a work of authorship in the course and scope of his/her employment, the employer owns the copyright, and no written agreement is required. If the author of the work is not an employee, then the work can only be a "work made for hire" if it falls into one of the relatively narrow categories listed in the section 101 definition of "work made for hire" and the author and employer are parties to an express written agreement. In the OP's situation, if the artists are not employees (as they likely would not be), then their works could not be "works made for hire," and the OP could only acquire ownership through a transfer agreement made pursuant to section 201, et seq.

  10. #10
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    Default Re: 4 Questions About Trademarks

    Quote Quoting pg1067
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    That's not quite accurate as phrased.
    You are correct, of course. What I wanted was the word "or" rather than "and"; even then it of course would have lacked the full detail of what is required for a work for hire. I realized that after the time to edit my post had expired, which is why in my follow-up post I linked to the Copyright Office explanation of it instead.

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