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Can the originator own the name of an untrademarked, defunct Facebook page with no business/service/original content attached?
Anonymous2 views6 answers
Around 2010 a Facebook page called ‘Bad Boys of Barstow’ was created by my friend, Pat, and was shut down for lack of interest in 2015. Recently my friend Shehan mentioned to Pat that he was thinking of using the phrase ‘Bad Boys of Barstow’ on a jacket and making a business of selling them. Pat said that that would only be ok if he (Pat) was paid ‘some money’ as he considered the phrase to be his intellectual property. Shehan agreed to this, should he ever create a jacket, I didn't say a word. I’m a novelist and - unaware of Pat's feelings on this - have been using the phrase as the title for my next book which I'm working on now. My literary agent in NY is very excited about the title. Can I still legally use ‘The Bad Boys of Barstow’ as a title for my novel or does Pat own the phrase?
Ira W DavidIntellectual Property Law AttorneyLas Vegas, NV ·
The phrase "Bad Boys of Barstow" appears too short to be copyrighted, and is not likely to be considered a trademark either. Also, book titles generally are not subject to trademark so, unless there is likelihood of confusion for the consumer, there would not be trademark infringement even had Pat used it as a trademark. If you want to use the phrase, I would advise you to speak to an IP attorney but I expect you will get a green light.
A Trademark is a Word, Symbol or Device that identifies the source of goods or services to a consumer thereby reducing consumer confusion as to the source. The "word" or "Name" in the Asker's statement has no content, no goods, no services and is apparently not engaged in any commerce. Unless there was commerce, at sometime in the past, and the intent to continue commerce then there is likely no trademark protection for the defunct entity. Additionally, the original "Name" may not have been trademark protectable. See IP Counsel..
Philip Thomas VirgaPatent Application AttorneyRedondo Beach, CA ·
The Facebook title appears from your question not protectable under trademark law and your use as a book title is a copyright matter. Therefore, in view of an interested publisher I would advise you to seek the counsel of an intellectual property attorney to ascertain that there are no ownership rights before you publish.
Let me add some unsolicited advice. If you do enter into a publishing contract, you should probably disclose these facts to the publisher. In the agreement, you might be asked to indemnify the publisher for intellectual property claims and should Bad Boy Pat make some noise, it would look bad to your publisher if they had not been made aware of it. They have experienced counsel and can clear the name on their own for you.
In all likelihood using this as a title for your book should be find because single creative works are not afforded trademark protection. That said, only if someone could claim that the title was somehow misleading would there be any reason to take action.
You are likely going to have other legal concerns as well, so I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
Best regards,
Frank
Natoli-Lapin, LLC
