Like Madame Curie and Mariah Carey, copyrights and trademarks are sometimes mistaken for each other. The irony is that the core purpose of trademark law is to prevent consumer confusion.
While copyrights and trademarks protect different interests, brand owners can often use both to safeguard their rights. Understanding the distinction between copyright and trademark protection is key.
- Trademarks protect brand recognition and reputation. They prevent others from copying source identifiers—such as names, slogans, series titles, distinctive fonts, logos and publisher imprints—that help consumers distinguish the source of one product or business from another.
- Copyrights protects the creative expression in original works of authorship—including the text of a book, photographs, cover designs, illustrations, maps and typeface designs—but not the underlying ideas, facts, or brief phrases.
Trademark law serves two primary purposes: (a) protecting consumers from being misled about the source or sponsorship of products and services and (b) safeguarding the investments authors and publishers make in building their brands.
Federal Trademark Registration Requirements
The key benefits of a federally registered trademark are the right to sue in federal court and access to Amazon’s Brand Registry. Registering a series title, pseudonym, or well-known author's name with the U.S. Patent and Trademark Office (USPTO) allows you access to Amazon's Brand Registry—a cost-effective alternative to litigation that enables a trademark registrant to remove unauthorized content from the Amazon platform.
Important caveat: Not all author names qualify for federal trademark protection. To register a name mark, you must demonstrate that consumers associate your name with literary services and purchase books based on your name recognition, regardless of subject matter or series. This typically requires evidence of substantial sales, marketing efforts, and broad consumer recognition. Many successful trademark registrations involve authors whose brands extend beyond books to merchandise, film/TV adaptations, podcasts, or speaking engagements.
Using Amazon's Brand Registry
If you have a federally registered trademark, you can enroll in Amazon's Brand Registry. The program gives brand owners powerful tools to monitor Amazon for infringing listings—such as unauthorized use of series titles or products falsely claiming affiliation with your brand. When you spot a violation, you can file a takedown request directly through the Registry. Amazon reviews the claim and, if it confirms a violation, removes the offending listings.
Copyright vs. Trademark Violations
If your issue with Amazon (or other platforms) involves someone using your content without permission, that's a potential copyright violation. Copyright owners can use the Digital Millennium Copyright Act (DMCA) to have infringing online content removed without resorting to litigation. In such cases, use Amazon's "Report the Infringement" takedown tool.
However, internet service providers have a legal obligation to restore content if the alleged infringer sends a counter-notice claiming the copyright owner is wrong. Unless the copyright owner files a lawsuit within 10-14 days of receiving the counter-notice, the content goes back up. This process can become a frustrating cycle of takedowns and restorations..
Unfair Competition Law
Unfair competition law, governed by state and federal laws, protects businesses and consumers from deceptive or unethical commercial practices. Broader in scope than trademark law, it applies to a wide range of business activities, not just the deceptive use of marks. It can be used to combat various forms of misrepresentation, including false claims about the origin or endorsement of creative works or products, including author impersonation. Importantly, unfair competition law protects both registered and unregistered marks.
Even without a registered trademark, individuals and businesses can invoke unfair competition laws against bad actors who consumers into falsely believing their products (including books, blogs, podcasts, and businesses) or services have been approved or endorsed by the brand owners. For example, if a blogger uses a name or logo that’s confusingly similar to yours, you may be able to stop them under unfair competition laws.
While these default protections for common law marks exist, owning a federally registered trademark provides significantly stronger nationwide rights and makes enforcement faster, easier, and less costly.
Federal trademark registration also unlocks important tools unavailable to unregistered mark owners—most notably, Amazon's Brand Registry. Without a registered trademark, you cannot enroll in this program, which allows brand owners to monitor third-party sellers, remove infringing listings, and protect their reputation on the world's largest retail platform.
Real-World Example: Jane Friedman's Case
Publishing strategist Jane Friedman brought national attention to the problem when she discovered multiple books being sold on Amazon under her own name that she did not write--constituting false designation of origin (a form of unfair competition) under both state and federal law.
Jane’s brand is closely associated with the business of being a writer. Fortunately, she was able to use her online platform and influence—rather than litigation—to persuade Amazon to remove the books. But not all authors have this option available to them.
Practical Strategies for Authors
- Monitor Regularly. Set up Google Alerts and periodically search Amazon unauthorized use of your name, series titles, or brand.
- Act Quickly. A cease-and-desist letter is essentially a threat of litigation—often an effective step before filing suit. Its tone should be calibrated to the facts, ranging from firm and aggressive to more conciliatory, depending on the circumstances and desired outcome.
- Consider Trademark Registration. A registered trademark provides stronger brand protection and access to Amazon's Brand Registry, making enforcement significantly more effective than cease-and-desist letters alone.
- Consider Copyright Registration. Registering your works strengthens your enforcemernt options in court.
- Use the Right Reporting Tool. Unlikes Amazon's Brand Registry, you do not need a copyright registration to send a DMCA takedown notice. Platforms (like Amazon, YouTube, or Facebook) generally process takedown requess without asking for proof of copyright registration.
Important copyright limtiation.
-
To sue in U.S. federal court for copyright infringement, you do need a copyright registration (or at least a filed application that the Copyright Office has acted on).
-
Registration also unlocks important benefits like statutory damages and attorneys’ fees, which are not available otherwise.
Conclusion
By understanding both the tools and their practical limitations, authors and publishers can develop realistic strategies to protect their work and reputation in the evolving digital publishing landscape while avoiding expensive legal battles with uncertain outcomes.
###
DISCLAIMER: The content of this article is intended to address general legal issues and does not constitute specific legal advice for any individual situation. It is strongly recommended to seek competant legal counsel before relying on any information contained herein.
ABOUT THE AUTHOR
Lloyd Jassin is a New York publishing and entertainment attorney with 30+ years of experience representing bestselling and first-time authors (and heirs), literary agencies, and publishers. He specializes in book contract review and negotiation, manuscript clearance for libel and privacy law compliance, book-to-film/TV deals, brand protection, and complex rights reversions for authors, composers, and literary estates.
He co-authored The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers and has been widely quoted in The New York Times, the Wall Street Journal, Publishers Weekly and other national publications. Before becoming an attorney, he served as Director of Publicity for a division of Simon & Schuster.
An active member of the publishing community, he has spoken at BookExpo and Publishers Weekly industry conferences, served as an adjunct professor at NYU Center for Publishing, and previously chaired the Center for Independent Publishing executive committee. He currently serves on the Beacon Press advisory board.
His entrepreneurial endeavors includes ownership of East St. Louis Music, Inc.-- a music publishing company featuring the works of Miles Davis.
Licensed to practice in New York and New Jersey, Mr. Jassin counsels clients on all aspects of content creation, copyright, trademark, and privacy law in the evolving entertainment landscape.
Contact: jassin@copylaw.com | (212) 354-4442 | 104 West 40th Street, FL 5, New York, NY 10018. With offices in Madison, N.J.
© 2024-2025 Lloyd Jassin
