Cussedness Corner

"My work may be garbage but it's good garbage." Mickey Spillane

Here’s the reply to my previously posted email


WITHOUT PREJUDICE

Dear Ms. Frank,

You replied to our notice regarding your infringement upon our trademark of the word “Polymancer”. It needs to be re-iterated: the word “Polymancer” is not an ordinary word but one that was created by Polymancer Studios, Inc. for the purpose of doing business under that mark. While consisting of two root words from the Ancient Greek language, their placement together as a single compound is by no means a common use. For example, the word “Polymancer” is not currently in any dictionaries.

The purposes of trademark law include the protection of members of the public from any possibility of mistakenly attributing the origin or endorsement of a product or service. Your use of the word “Polymancer” as a type of character does have the potential to so confuse members of the public for the following reasons:

* Polymancer Studios’s principle business activities are publishing and printing. Your use of the word “Polymancer” is in a published book.
* Much of Polymancer Studios’s published oeurve appeals to fans of science fiction, fantasy fiction, and horror fiction. Your use of the word “Polymancer” is in the context of fantasy literature.
* Polymancer magazine itself is concerned with roleplaying games, a hobby in which the participants generate characters, often characters who have specific functions and definable roles. Your use of the word “Polymancer” is for a specific kind of character, in such a way that is highly similar to character typology in roleplaying games.
* A search in Google and other popular search engines for the word “Polymancer” results in the URL referenced in our previous communication to you. This could cause Internet users to mistakenly believe that there is an association between Polymancer Studios, Inc. and yourself.

Polymancer Studios, Inc. has been using the word “Polymancer” as a unique identifying mark (as per US and other trademark legislation, a word is a “mark” that can be used in business; the potential for confusion in identification is in no way restricted to visual logos only) in commerce and in the specific context of publishing since late 2003. Your use of the word “Polymancer” is subsequent to this date and is not done, in the language of US trademark law, for the “bonifide purposes of conducting business under the mark.” Please note that our registration of the trademark “Polymancer” applies to the actual word “Polymancer” and not to a logo or to any particular physical manifestation of the word “Polymancer.”

Your use of the word “Polymancer” is in a context that is substantially similar to the use of that word by Polymancer Studios, Inc., particularly with regards to the fictional context of your work and the specific population of your intended audience. Regardless of your opinion on the matter, an infringement has occurred with your use of the word “Polymancer” and we restate that you are directed to cease and desist any and all use of the word and references thereto within 30 calendar days of receiving this communication.

Do conduct yourself accordingly.

Sincerely
Polymancer Studios, Inc.

cc// Legal

Janrae Frank wrote:,

> Dear Sir or Ma’am;
>
> You recently contacted us regarding what you felt was the infringement of your trademark of the word Polymancer. However, contrary to popular belief, trademarked words are, according to Chief Justice O’Connor: “Not removed from the public lexicon due to being trademarked” and thus the word can still be used. Additionally, it appears that the word was both published in fiction books as a noun and adjective with a specific, almost singular, usage and trademarked by your company.
>
> While I applaud your desire to aggressively defend your registered trademark, you have made several errors regarding Daverana use of the word “polymancer” and your trademark Polymancer.
>
> Trademark Infringement occurs when the following occurs:
>
> Infringement may occur when one party, the “infringer”, uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers.
>
> Seeing as our word “Polymancer” refers to an individual who may use multiple types of magic, and is used as both a noun and an adverb for fictional characters, not a product or service provided by Daverana, there is no trademark infringement on that point.
>
> Additionally, the Ninth Circuit Court of Appeals of the US Judiciary Branch has established this test:
>
> 1. Strength of the mark
> 2. Proximity of the goods
> 3. Similarity of the marks
> 4. Evidence of actual confusion
> 5. Marketing channels used
> 6. Type of goods and the degree of care likely to be exercised by the purchaser
> 7. Defendant’s intent in selecting the mark
> 8. Likelihood of expansion of the product lines
>
>
> You have excellent strength of mark, regarding Polymancer Magazine, however, Daverana does not try to market any product using the word Polymancer in its title, leaving your strength undiluted and therefor no damage occurs to the strength of you mark, as it refers to your magazine, nor will anyone consider a character from within a Daverana novel to be a magazine rather than a person who is skilled in “polymancy”
>
> Proximity of goods is widely separated, seeing as Polymancer is a type of person, often used as a noun, where your Polymancer is a company and an RPG magazine. We do not have proximity, and there would be no confusion by consumers.
>
> Similarity of the mark: This does not come into play, as we are discussing a word, not a trademarked symbol.
>
> Evidence of Actual Confusion: I do not believe this has come in to play, as I doubt either of us have customers who are likely to confuse a fictional character with a real and existing company.
>
> Marketing channels used: Since Daverana does not depend on marketing of the word Polymancer, marketing channels are wildly separated.
>
> Type of goods and degree of care: Once again, it is doubtful that anyone will purchase a novel or visit the web-page, and confuse the Polymancer magazine with “Abelard the Polymancer” and attempt to contact Daverana with the intent of purchasing Abelard for their own use.
>
> Defendant’s Intent: Was not to capitalize on your trademark, but rather using a very common sense melding of two words: Poly, meaning multiple, and mancer, which means caster. This was not done with the intent of infringing on customer faith and reputation of Polymancer Magazine.
>
> Likelihood of Expansion: Daverana does not even plan to use Polymancer in the title of any novels at this time.
>
> According to these guidelines, the use of Polymancer by Daverana does not constitute a trademark infringement according to those guidelines.
>
> While we here at Daverana understand your desire to aggressively defend your trademark, and thus your brand name, and your desire to keep others from cashing in on your hard earned customer faith, loyalty, and reputation, the use of “polymancer” by Daverana does not constitute a infringement upon your trademark under United States of America trademark law or the statutes of the Paris Convention of Trademark Law.
>
> We would like to make sure that this matter is settled without hurt feelings on either side, and welcome a dialogue with you regarding your concerns and questions regarding our use of the non-trademarkable form of “Polymancer” in order to calm any concerns you have about loss of reputation, customers, or brand strength.
>
> Sincerely;
>
> Janice R. “Janrae” Frank
> CEO Daverana Enterprises
>
>
>

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This entry was posted on May 5, 2009 by in Janrae Frank and tagged , , .

Janrae Frank

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