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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.”
Robot 6 reported Tuesday that comics creator Jazan Wild had sent cease-and-desist demands to book reviewers who posted excerpts of Carnival of Souls, a fantasy novel whose title is the basis of his recent trademark-infringement lawsuit against publisher HarperCollins. A spirited discussion followed in the comments, drawing in Wild (aka Jason Barnes) and his wife Susan Barnes.
Now Wild’s attorney Ted Shiells of Shiells Law Firm in Dallas has contacted Robot 6 with a statement to clarify Wild’s emails to reviewers — “Mr. Wild was not threatening to sue any of these persons. He only intended to make them aware of his trademark rights in CARNIVAL OF SOULS, to minimize the confusion he has already suffered,” Shiells said — and to address some of the questions and criticisms raised in the comments thread.
Wild, who gained attention in 2010 when he sued NBC and the producers of Heroes claiming they’d ripped off his idea for a “carnival of lost souls and outcasts,” accuses HarperCollins of intentionally using Carnival of Souls as the title of Melissa Marr’s new young-adult novel in an effort to create confusion between that book and his own 2005-2006 comic series and related works.
Shiells’ statement, which can be read below, explains the differences between trademark classifications, and underscores that while the title of a single book cannot be trademarked, the title of a series can be. However, there still appears to be some question whether HarperCollins ever planned Carnival of Souls to be the name of Marr’s forthcoming series. (Also in question: If Wild wasn’t threatening to sue bloggers, what exactly was the purpose of the cease-and-desist notices, which by their very nature are a threat of legal action; and what standing does he have to demand that websites remove excerpts of a book for which he holds no copyright. To Sheills’ credit, he apologized for any misunderstanding, but the whole situation is perplexing.)
Jazan Wild, the comics creator who gained attention in 2010 when he sued NBC and the producers of Heroes for $60 million, has begun sending cease-and-desist notices to reviewers who publish excerpts from Melissa Marr’s new young-adult fantasy novel Carnival of Souls, claiming the title violates his trademark.
Children’s literature website Bookalicious today posted an email from Wild, aka Jason Barnes, insisting that a recent excerpt of Marr’s book amounts to a “willful and malicious infringement” of his “Carnival of Souls” trademark and demanding its removal.
Wild’s objection follows a trademark-infringement lawsuit he filed in July against HarperCollins, accusing the publisher of intentionally using the title Carnival of Souls and the phrase “Enter the Carnival” in an effort to create confusion between Marr’s novel and his own 2005-2006 comic series and related works. He’s asking a federal court to prevent HarperCollins from using the title, and seeking the destruction of all of the allegedly infringing books and promotional materials, as well as unspecified damages. In court documents, Wild’s lawyer recounts his client’s repeated attempts to head off the release of Marr’s book as Carnival of Souls, which were ultimately dismissed with HarperCollins’ trademark counsel allegedly saying, “You’re not an attorney, are you?”
It’s worth noting that Wild’s legal dispute is with HarperCollins, so it’s unclear why his cease-and-desist notice is directed at book reviewers. More baffling, however, is how in Wild’s estimation an excerpt from Marr’s novel (whose copyright is held by Marr) infringes on his “Carnival of Souls” trademark; his objection is with the title, not the text.