X-POSITION: Burnham, Culver, Villalobos Spell Out "E Is For Extinction"
A federal judge last week rejected a bid by HarperCollins to dismiss claims by comics creator Jazan Wild that the title of Melissa Marr’s new fantasy novel Carnival of Souls infringes on his trademark.
Law360 reports that in denying the motion, U.S. District Judge Josephine Staton Tucker disagreed with the publisher’s assertion that the trademark was invalid because it applied to the title of a single comic, finding that Wild (aka Jason Barnes) had demonstrated his Carnival of Souls is a series.
The judge also didn’t buy HarperCollins’ argument that the title of Marr’s book is protected by the First Amendment, pointing to Wild’s claim that the publisher “deliberately chose a confusingly similar title for its competing book in the same genre.” That allegation raises what Tucker deemed is “a factual question as to whether [Marr’s] book is likely to confuse consumers as to the origin of its source. The court cannot determine, as a matter of law, that it does not.”
However, while the judge kept Wild’s trademark-infringement claims in place, she dismissed the accusation of trademark dilution, supporting HarperCollins’ assertion that the title of Marr’s book has an artistic component that constitutes a noncommercial use of a trademark — and therefore not actionable under the Lanham Act.
Wild’s July lawsuit against HarperCollins gained attention in September after he sent cease-and-desist letters to book-review websites that published excerpts of Marr’s novel, claiming they amounted to a “willful and malicious infringement” of his “Carnival of Souls” trademark. Wild’s attorney Ted Shiells later attempted to clarify his client’s emails, insisting he “was not threatening to sue any of these persons” but rather “only intended to make them aware of his trademark rights in CARNIVAL OF SOULS, to minimize the confusion he has already suffered.” (It should be noted, however, that cease-and-desist notices, by their very nature, are threats of legal action.)
Wild, whose Jazan Wild’s Carnival of Souls debuted in 2005, is perhaps best known for the $60 million lawsuit he filed in 2010 claiming that NBC Universal and producer Tim Kring ripped off the “carnival of lost souls and outcasts” that menaced the final season of the television drama Heroes. He more recently sued a songwriter over a graphic novel biography deal that went bad.