• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Trademark/copyright question

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

johnfisher9980

Junior Member
What is the name of your state (only U.S. law)? Kansas

Hi, just curious, if I am writing a fiction book and one of my characters in the book happens to have the same name as a real life racing horse (such as "Black Blur", or "Dust Bunny"), could the owner of the horse come back on me after the book is published claiming rights to that name?

Note that the book would have nothing to do with horses or racing, and the character would be a human.

Thanks,
 
Last edited:


quincy

Senior Member
What is the name of your state (only U.S. law)? Kansas

Hi, just curious, if I am writing a fiction book and one of my characters in the book happens to have the same name as a real life racing horse (such as "Black Blur", or "Dust Bunny"), could the owner of the horse come back on me after the book is published claiming rights to that name?

Note that the book would have nothing to do with horses or racing, and the character would be a human.

Thanks,
Could the owner of a race horse claim.rights to a name you use for a character in your book? Yes.

If the name that you use in your book is also a trademark, the owner WOULD have rights to the name.

But there has to be more than just the use of name that is also a trademark for a lawsuit with merit to result. There generally needs to be consumer confusion generated by the use of a name that is also a trademark or there needs to be a disparagement of the trademark owner's goods or services as a result of the use of the name. The trademark holder would need to show harm has resulted from the use.

Although it would probably be difficult for a horse owner to claim harm has resulted from the use of his horse's name for a human character in a book that has nothing to do with horses, it is not outside the realm of possibilities.

You will probably want to find out if the name you wish to use in your book is trademark -protected first, to better assess your legal risk.

What is your reason for choosing the name for a character in the book? Will it also be used in the title?
 

johnfisher9980

Junior Member
Thanks for the advice, the reason for the name choice is that the name was selected and then upon researching, it was found that someone had a race horse with the same name.

Also, it would not be used in the title, but the character would be the main character in the book.
 

quincy

Senior Member
Thanks for the advice, the reason for the name choice is that the name was selected and then upon researching, it was found that someone had a race horse with the same name.

Also, it would not be used in the title, but the character would be the main character in the book.
Most race horses will not have their names rights-protected but you will want to check to see if the particular name you've chosen for a character name is a trademark. This is likely where the risk of any legall issue arising will be greatest (although there is a slim chance of a personality/privacy issue, depending on name and content ).

It is impossible to give you any idea of what risks there are in using a name for a character in your book, especially when the specific name is not known. Going over specifies is best done with a publishing law/IP professional in your area.

Good luck.
 

FlyingRon

Senior Member
Animals do not have rights to personality; they are not persons. They are property and the owner will need to establish property rights of which the only one that would appear to apply here would be a trademark. As mentioned, a race horse itself likely isn't going to have it's name used in commerce. It might be different if the horse was famous and the name was used on a mark for other products. For example, if they marketed "Secretariat brand horse blankets" or the like. Typically within the breed, there's a separate recognition of name, keeps you from using the name Secretariat, for example for another race horse as it would be denied registration by the non-governmental bodies that administer such activity.
 

quincy

Senior Member
Animals do not have rights to personality; they are not persons. They are property and the owner will need to establish property rights of which the only one that would appear to apply here would be a trademark. As mentioned, a race horse itself likely isn't going to have it's name used in commerce. It might be different if the horse was famous and the name was used on a mark for other products. For example, if they marketed "Secretariat brand horse blankets" or the like. Typically within the breed, there's a separate recognition of name, keeps you from using the name Secretariat, for example for another race horse as it would be denied registration by the non-governmental bodies that administer such activity.
I apparently confused with my mention of publicity/privacy rights?

A lot depends on the name selected (e.g., does the horse share a name with a real person). I doubt you will find a person named Secretariat, but horses can be named after humans.

There were a few nteresting cases that involved Roy Roger's horse Trigger and I believe a suit involving Mr. Ed. I can post back with more on this later but, because we do not know the name in question, I would not want to rule out any possibility.
:)
 

johnfisher9980

Junior Member
Good points, so it sounds like the main thing to watch for would be if the horse's name is trademarked. Do you guys think the best way to search for a trademark would be to go to the uspto.gov website and do a trademark search through "Basic Word Mark Search"? Again thanks,
 

quincy

Senior Member
Good points, so it sounds like the main thing to watch for would be if the horse's name is trademarked. Do you guys think the best way to search for a trademark would be to go to the uspto.gov website and do a trademark search through "Basic Word Mark Search"? Again thanks,
That can certainly be one way to start a search but it is only a start . You also need to check state registries and for marks that are not registered at all.

In the U.S., trademarks gain their rights through the use of them in commerce . Unlike other countries, registration is not required. Because it can be time consuming and tedious, many will rely on trademark search firms
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top