Yesterday I saw a huge uptick in the number of comments left on my America Unearthed reviews, and naturally I wondered why. As it happens, A+E Networks, the parent of H2, gave America Unearthed a tryout on History yesterday, exposing the show to a potential audience that averages eight to ten times the size of H2’s audience. The program also began an international run on several foreign broadcasters. To paraphrase A+E’s lawyer, it’s surely “no coincidence” that the network tried to quash my America Unearthed book not long before this launch.
So, I visited the United States Patent and Trademark Office to find out what rights A+E Networks claims for its various marks. (The USPTO does not allow direct linking to marks, so you’ll have to search yourself here.) For America Unearthed, interestingly, they do not claim trademark in connection with books. According to their July 2012 filing, they claim the trademark only for “prerecorded digital video discs and DVDs,” an “ongoing television series,” and “a website,” including podcasts, smart phone graphics, and discussion boards.
Even more interesting, they claim that their program and website are for “entertainment information purposes only.” Contrast that with the service mark application for Ancient Aliens, which states that the mark is associated with “non-fiction documentary subject matter.” What’s the difference? This: the service mark for Ancient Aliens is controlled by Prometheus Entertainment, the production company, while the mark for America Unearthed is controlled by A+E. It looks like Committee Films got a raw deal by giving A+E control over the program while Prometheus kept the rights to its. I wonder why A+E seems to be pushing America Unearthed and easing up on Ancient Aliens? Could it be about money? Could I be using rhetorical questions to make sure I don’t state anything definitively?
Now here’s the fun part: Scott Wolter filed for a trademark on the Hooked X in 2009 to coincide with publication of his book of that name! However, his mark covers only the phrase “Hooked X,” not the specific appearance of the rune character. The USTPO has no record of any trademark assigned for the “hooked X” rune itself, so far as I can find. I had no idea he owned a trademark on the phrase since he does not disclose this fact on the Hooked X website, or on the book cover, nor has he apparently defended the phrase “hooked X” from being used as a generic by other authors and publications, or by bands, as a Google search for the phrase shows. (Part of trademark law involves asserting the mark publicly, usually with a TM or ® symbol, and by defending the mark.) From now on, of course, I will have to write Hooked X®; however, my book does not use the registered mark on the cover and the registered mark does not cover the graphic element, which is in the public domain.
There’s also a good case to be made that the Hooked X® trademark is invalid since the term had been used as a generic for various x-shaped figures in the archaeological literature since at least 1990, when the term appears in the Journal of Indo-European Studies to describe incised figures similar to Wolter’s infamous rune. As in the recent cases of Hotels.com and Mattress.com, federal courts have held that a term that the “relevant publics” (in the case of the Hooked X®, that would be archaeologists) have used as a generic cannot be trademarked. Further, a book title cannot be trademarked until a book series has been established, under unfair competition laws in the U.S. Currently, there is only one Hooked X® book and therefore the title does not qualify for trademark status; subsequent book titles would need to be on the order of The Hooked X®: Desert Dinosaur Adventure or something along those lines, using the series title. I imagine that Wolter must have filed an “intent to use” for the mark as a book series, though I cannot see this information online.
And even if that were the case, I could still use the words “Hooked X” in my book title if I wanted to under the 1992 doctrine of “nominative fair use” in which the trademark is necessary for explaining the content of my book in reference to the mark being criticized. So, I could have titled my book Unearthing the Truth about Scott Wolter’s Hooked X Hoax. But I didn’t do that, so this isn’t really relevant. All I did was use a rune that has been in the public domain for decades. The exact expression of that rune was provided to me, with permission, by Richard Nielsen, in the copyrighted typeface he developed for typing Kensington Rune Stone figures.
I’m not sure there is any way to challenge Wolter’s trademark without going to court to claim that his mark is causing material damage to those using it as a generic. It will, however, expire in 2015 unless… well, I’m not going to help him out with the directions for avoiding cancellation.