Can 2 Authors with the same name run into legal problems?

[T-Shirt Racer]

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

I live in North Carolina. I'm getting ready to self-publish a Christian book. I did Google and Amazon searches to see if my name (which is very common) came up as an author. Two did. One ironically is an agnostic author and the other is a best selling author and as irony would have it lives in my state. When I publish the book am I OK to use my real name, or can I have legal issues down the road from either of these other two authors who share my name? I'm also a public speaker so a sir name or middle initial is really not feasible. Thank you for any help that you can offer. John

 

[TheGeekess]

Why wouldn't you want to differentiate yourself from the other two authors by using your middle name?

 

[T-Shirt Racer]

My middle name (Felix) is a bit odd and using the middle initial along with the last name (Hart) sounds really bad. (Fhart)

I'm not overly concerned with a little confusion if people do a Google search, because the other guy that lives in North Carolina is the best selling author. If anything it might draw attention to my book from folks looking for the other guy. I just don't want to get in legal trouble because he claims I'm trying to profit from using his name. It is however my name too.

 

[quincy]

You can be prevented from using your real name as author if the use of your real name can be seen as trading off the name and success of the best-selling author.

Although names are not generally considered a "strong" trademark, they can acquire a secondary meaning over time and others can be prevented from using them. Two friends may be called Ben and Jerry but they cannot open a Ben and Jerry's ice cream shop without a risk of an infringement suit. A person named McDonald can be prevented from opening a fast-food restaurant named McDonald's.

And a person named Stephen King can be prevented from writing novels using his real name, if to use his real name causes confusion among readers, and the novice novelist can be seen to be capitalizing off this confusion.

Stephen King is associated with a particular genre of writing and the name Stephen King has acquired a secondary meaning due to his success as an author. If you are also a Stephen King and you write a novel using your real name, the other Stephen King and his attorneys are apt to make your life miserable.

Your best bet is to write your book under a different name and have your book sell on its own merits. Profitting off the success of the other author, or trying to profit off the success of the other author, can be legally dangerous.

Hart Felix is not a bad name for an author (or for a character in a romance novel ).

 

[T-Shirt Racer]

Thank you for your help. I'm certainly not trying to "Profit off the success of another author" I just want to use my real name. We are in very different genres so I wouldn't think there would be any confusion there.

 

[quincy]

You originally asked if you could have legal issues down the road if you published your book under your name, when there are other authors of the same name. The answer is yes. This fact does not prevent you from authoring a book under your own name. It does, however, put you at a greater risk of a lawsuit.

Whether you are publishing your book with the intention of capitalizing off another author's success or not, and whether you believe there will be no confusion in the marketplace or not, if the "senior" author wants to sue and the senior author can prove confusion, you have just lost a lawsuit.

A court looks at several factors when deciding whether something is infringing or not, often using as a guide determiners outlined in Polaroid Corp. v Polarad Elecs. Corp, 287 F.2d 492 (ed Cir. 1961).

In this Supreme Court case, the court looked at the similarity between the marks (names in your case), and the similarity in the product (books in your case), and the strength of the senior user's mark. They also looked at whether the senior user might "branch out" into the same area as the junior user. The intent of the junior user will be looked at. Evidence that consumers are/were confused will be looked at (with less sophisticated consumers more likely to be confused by similarities). And the court will compare quality, to determine if a lesser-quality junior product will affect the market for the higher-quality senior product.

Using the Stephen King example once again: Because Stephen King novels are so popular and well known and because Stephen King's name is so recognizable, people look for books authored by him. A person who picks up a book by Stephen King knows what to expect when they purchase one of his books. If a junior Stephen King wrote a book about petunias and how to grow them, the purchaser of the Stephen King petunia book could be greatly upset when the petunias did not rise up and eat the gardener in the end.

You are certainly free to use your own name. There are risks with it. I would speak with an attorney in your area to go over these risks. I would hate to see all of T-Shirt Racer junior's book profits wind up in the hands of the senior T-Shirt Racer author.

 

[JD Paul]

contact author

So how about contacting the other author asking permission if he wouldn't mind if I used my (same) name.
(In my case there is another "popular enough" author (not JD Paul), but I plan on a simple self-publish which may or may not garner a following.)
I assume I should also get that "permission" in writing...
JD

 

[quincy]

So how about contacting the other author asking permission if he wouldn't mind if I used my (same) name.
(In my case there is another "popular enough" author (not JD Paul), but I plan on a simple self-publish which may or may not garner a following.)
I assume I should also get that "permission" in writing...
JD

This is an old thread from 2009, JD Paul. This forum prefers that new questions by new members are asked in new threads.

Very quickly, though, there are several authors who share the same name with another or other authors and this is often not a problem. There are a couple of authors named Christopher Moore, for one example.

Personal names cannot be protected under copyright laws and they are generally not given much protection under trademark laws. But that does not mean a suit won't arise if an author you share the same name with is irritated by your use, finds your books are competing unfairly with his in the marketplace, the other author's name has become connected in consumer's minds with his books, and consumers are misled into believing you and the other author are one and the same.

How likely it is that a problem would arise in your case is impossible to tell without a personal review.

If you think there might be a conflict, you can contact a publishing law professional or, I suppose, you could contact the author directly (although the other author probably will not want you using the same name on your books that he is using on his - whether for a legitimate reason or just because).

If you'd like to start your own thread to discuss this more, I'd appreciate it. Thanks.

 

[JG Parker]

Alternatively

(I know it's been a while - hope there are still fresh eyes in this site)

I'm approaching the same issue but I wonder an alternative question. There's been someone using my name since 2013 but he hasn't done anything since and I don't believe he's even still writing. His book was clearly (I mean very obviously) never edited, and the second "installment" to his series was only 15 pages long. I've had a website running for my stories since 2015, and have already had over 1000 readers/unique visits with kudos emails from fans - even in the UK (where he's based).

I've never been contacted by this other author. I don't know if he considers it a profession that he's engaged in anymore. But I have 2 novels that I'd like to put into the market, and I'm wondering if I'm going to run into an issue. OH! - by the way, both of his books cost respectively, $.99 and $.00 on Amazon.

In the aforementioned examples, the anchor was that the "senior" had presumably more success than the "junior", which the junior alone benefited from. The rulings seemed to favor a he-was-here-first approach, awarding the "senior" profits from the "junior". What about a he's-doing-it-better circumstance?

How would a judge see this case? Given that I've had arguably more success than the "senior user", albeit that we'd essentially be publishing in the same genre, and I'm in a different country of residence.

My gut tells me - "nothing to worry about, just make sure your readers know your work apart from his." Is my gut wrong?

 

[quincy]

(I know it's been a while - hope there are still fresh eyes in this site)

I'm approaching the same issue but I wonder an alternative question. There's been someone using my name since 2013 but he hasn't done anything since and I don't believe he's even still writing. His book was clearly (I mean very obviously) never edited, and the second "installment" to his series was only 15 pages long. I've had a website running for my stories since 2015, and have already had over 1000 readers/unique visits with kudos emails from fans - even in the UK (where he's based).

I've never been contacted by this other author. I don't know if he considers it a profession that he's engaged in anymore. But I have 2 novels that I'd like to put into the market, and I'm wondering if I'm going to run into an issue. OH! - by the way, both of his books cost respectively, $.99 and $.00 on Amazon.

In the aforementioned examples, the anchor was that the "senior" had presumably more success than the "junior", which the junior alone benefited from. The rulings seemed to favor a he-was-here-first approach, awarding the "senior" profits from the "junior". What about a he's-doing-it-better circumstance?

How would a judge see this case? Given that I've had arguably more success than the "senior user", albeit that we'd essentially be publishing in the same genre, and I'm in a different country of residence.

My gut tells me - "nothing to worry about, just make sure your readers know your work apart from his." Is my gut wrong?

This is an old thread that has been revived once already by someone other than the original poster. It is best, if you want to discuss this in any depth, that you start your own thread, JG Parker. And please include the name of your state.

That said, what has been said previously still holds true today. The law has not changed.

I mentioned before that two authors can have the same name without conflict. There are two authors named Christopher Moore, for one example out of several. However, when an author achieves a level of success whereby the consuming public search out his/her books by name and the author has achieved a personal fame as well, the famous author can object to books published using "his" name if it is apparent the author of the same name is trading off the famous author's fame to market his own books.

Again, if you would like to look a little more into the laws of trademarks and publicity rights, we can do that. But please start your own thread.

Thanks.