Why You Should Add a Trademark Search to Your Editorial Process

Protecting Book Titles

Integrating a trademark search into your editorial process is a strategic and proactive measure to avoid infringement, protect your brand, and prevent legal challenges. 

 

In book publishing, trademark, and unfair competition laws are frequently used to combat deceptive practices. These laws target those who attempt to mislead consumers by falsely suggesting that their goods, including books, blogs, and businesses, carry third-party endorsements or approvals. 

 

Therefore, before forging ahead with the title of a new book or book series or the name of a new publishing company, it's advisable to conduct a trademark screening search to ascertain its legal availability. Otherwise, if the name you've selected closely resembles an existing trademark linked to related goods or services, it could be deemed as trademark infringement. Further, if the trademark owner has registered their trademark with Amazon's Brand Registry, they can use Amazon's takedown tool for the swift and frictionless removal of the infringing book. Worse still, the potential for litigation looms. 

Trademark is the New Copyright

In an era where AI-generated content increasingly competes with human-authored works for visibility and sales, the struggle for discovery on platforms like Amazon intensifies. The above sub-heading, "Trademark is the New Copyright," aptly captures this evolving landscape. As AI-generated books flood the market, distinguishing oneself as a trusted source becomes paramount. Building an author brand and securing trademark rights in series titles or company names not only establishes credibility but also acts as a beacon of authenticity amidst the deluge of algorithmically generated content. Therefore, the strategic adoption of trademarks serves as a proactive defense against legal complications, reinforcing the imperative of conducting trademark screening searches before finalizing any branding decisions. In essence, trademarking isn't just about legal protection—it's about fortifying one's position as a reliable creator in an environment where trust is increasingly elusive.

 

Did you know that a trademark for goods or services may prevent you from using a book title?

In a case involving the Ralph Lauren Polo brand, a court permanently stopped the unauthorized use of the name Polo for a lifestyle magazine. In granting the injunction, the court rationalized that both the magazine and Ralph Lauren's Polo brand were associated with fashion, elegance, and affluent lifestyles in the public's mind. While the First Amendment will allow you to write a book about Ralph Lauren and the fashion brand's cultural significance, you cannot ride on Ralph Lauren's designer coattails to boost your business by falsely implying an association when none exists.

Pro Tip #1. If the name of your existing business is evocative, memorable, and differentiating, consider it as the title of your book. If consumers were to see a  confusingly similar book title and reasonably believed it was associated with your business, you may have a viable unfair competition or trademark law - notwithstanding the so-called single title rule.   

Making a Title Screening Search Part of the Process is Important

The focus of the analysis is the likelihood the public will believe your book was published or approved by someone else, including a well-known brand owner. The most important likelihood of confusion factors are:  (a) the similarity of the marks, (b) the relatedness of the goods or services, which could be a book series, a podcast series, an online course, consulting or coaching services), and (c) the marketplace strength of the mark.

A knock out search is a trademark clearances search which helps identify identical marks, and those in close resemblance. The Trademark Office's free online database of every federal trademark registered or applied for in the U.S. is invaluable for identifying identical and similar marks for related goods or services. Known as TESS (Trademark Electronic Search System), the database is located at http://tmsearch.uspto.gov.  

If the title you've selected is already registered by someone for related goods or services, absent a First Amendment defense, soldier on and choose another title. If they cared enough to register their mark, there's a good chance they are prepared to fight to protect it.  

CAUTION. Trademark Office search results are not a reflection of the real world. They do not include unregistered marks. A full search by a professional trademark search firm, including state trademark databases and internet sources, is recommended if registration is contemplated.

Important! Not every use of a trademark (or similar title) without permission is an infringement. There are many legitimate reasons to use a particular word or phrase in the title of a creative work that doesn't have anything to do with trading on another party's goodwill, fame, or reputation. 

Trademark Registration Certificate

Most nonfiction book titles simply describe the contents of the book. Words that merely describe the contents of a book are, at best, weak trademarks and receive no protection without proof that consumers associate them with a particular source. By "source," the Trademark Act refers to the source of the physical or virtual goods rather than the author. While single titles are not entitled to trademark registration if a single title attains secondary meaning -- a level of commercial magnetism associated with runaway bestsellers -- it can be protected. In analyzing whether a title infringes a trademark or another title, courts balance the right to speak freely against the rights of the trademark owner. While using a disclaimer (the subject of a future post) is not a magic bullet, a prominent disclaimer can help reduce the potential for consumer confusion.

For additional tips on selecting a book title, click here.

A Warning Before You Start Your Search

Because of the malleability of trademark law, evaluating a search report is as much an art as it is science.  Put another way, the decision to move forward may come down to how much risk you are willing to take, which is a business decision informed by the quality of the search and the legal analysis. When in doubt, consult a trademark attorney. Your trademark attorney will advise if your mark is even registerable as a trademark.  Additionally, they will help you navigate the trademark registration maze.                                                                                                                                                                                                                    

How to Protect a Single Book Title (and the Business Behind it)

The rationale for the single title rule is that once a book enters the public domain, it should remain there, and the public be allowed to identify it by its original title. So how do you protect a series title, even though you haven't published the second book in the series?

While the first book in a series cannot be registered, the Trademark Office will allow an author to file a trademark application on an Intent to Use basis. Assuming your application meets the minimum filing requirements when the second book in the series is published and a Statement of Use is filed, the Trademark Office will re-evaluate the application. A key benefit of having an Intent to Use application is the filing date will serve as the date of first use if you complete the registration process. Another advantage is your application will block other later filed trademark applications for identical or confusingly similar marks for related goods, including series titles.  

When you obtain the registration for your title, the original filing date will serve as the date of first use. That gives you priority over those who began using the trademark after your filing date.

A slightly different process is involved if you already use the mark for an established book series. In either instance, you will need to publish book two in the series to obtain a federal registration.   

 

While you can't register a single book title, you may be able to register the trademark used by the business behind the book. So, for example, if consumers reasonably assume that the owner of a fashion consulting was the author of a book on fashion design and marketing, but they weren't, that confusion may rise to the level of unfair competition. 

 

Comment. While conventional wisdom says you can't compare apples to oranges, they are both grown in orchards, are considered fruit, and sold in the same section of your local supermarket, making them related for trademark law purposes. Trademark infringement is not simply a book-to-book, blog-to-blog, or app-to-app comparison. 

  

How to Trademark a Book Title 

Once you have selected your title, you or your attorney can file either an Intent to Use trademark application or one based on actual commercial use online at www.uspto.gov. Assuming your application meets the minimum filing requirements, it will be assigned to an examining attorney for review. If there are irregularities with the application, the examiner will issue an Office Action. An Office Action states the legal basis for a refusal to register. Some refusals are relatively easy to overcome, e.g., unacceptable specimen refusals and improper description of goods and services.

Pro Tip. A standalone book title cannot be registered as a trademark unless it is later used for a series of works (e.g., Harry Potter #1, Harry Potter #2). 

Substantive refusals include confusingly similar to a mark in an existing registration or pending application. Since a trademark must be distinctive, another common refusal is the mark merely describes an ingredient, quality, characteristic, function, feature, purpose, or use of the goods or services covered in your application. Refusals to register are par for the course. Some can be overcome by cogent legal arguments. However, those with fatal flaws cannot. If the objection is minor, the trademark examiner may call you or send you an informal email requesting information. But, because trademark examiners cannot provide legal advice, the Trademark Office recommends that you use the services of a law firm familiar with Trademark Office practices. 

Keep Track of Trademark Office Deadlines

A registered trademark can last forever, provided timely renewal applications are filed and the mark remains distinctive for the goods or services it is linked to. The following is a brief United States Patent & Trademark Office overview on how to maintain your trademark:

For a trademark registration to remain valid, an Affidavit of Use (Section 8 Affidavit) must be filed: (1) between the fifth- and the sixth year following registration, and (2) within the year before the end of every ten-year period after the date of registration. The registrant may file the Section 8 Affidavit within a grace period of six months after the end of the sixth or every tenth year, with payment of an additional fee. The registrant must also file a Section 9 renewal application (Section 9 Renewal) within the year before the end of each successive 10-year period following the date of registration, or within a grace period of six months after that, with payment of an additional fee. Assuming the Section 8 Affidavit and Section 9 Renewal are timely-filed as indicated above, the registration will be renewed for a 10-year term. If the Section 8 Affidavit and Section 9 Renewal are not timely filed, the registration will be canceled. Registrations canceled due to the failure to file a Section 8 Affidavit and Section 9 Renewal cannot be revived or reinstated.

Why Use a Trademark Notice?

 
Only with federal registration may you use the coveted ® symbol. If your mark is unregistered, you may use a superscript ™ after the mark. While trademark notices are not legal requirements, they have legal significance. Like a "No Trespassing" sign, a trademark notice gives notice of your rights. That makes asserting a good faith defense more difficult for a trademark infringer. While willfulness is not a precondition to a profit award, willful infringers are treated more harshly than innocent ones, including, in exceptional cases, awarding attorneys' fees.

 

Related Posts 

How to Choose a Book Title and Not Get Sued

Trademark Law and Book Titles

Common Copyright Permission Myths

 

 © 2022 Lloyd J. Jassin  COPYLAW is a service mark of Lloyd J. Jassin

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give specific legal advice pertaining to specific circumstances.   Professional legal advice must be obtained before acting upon any of the information contained in this article.

12 Common Copyright Permission Myths

Though you may not believe all twelve of these myths, familiarity with them can

free your book or blog from legal hassles. Get it wrong, and an aggrieved copyright owner can block or remove your work by filing a simple online takedown notice -- all without filing a complaint in court.  Worse still, it can spark costly and time-consuming litigation.  

1.       There's no copyright notice, so no permission is required.    

Not true.  Since March 1, 1989, copyright notice has been optional. Before that date, a copyright notice was mandatory, and a work published without a notice risked the loss of copyright protection if not promptly and adequately corrected.

2.       If I give credit, I don't need permission.

Not true. Giving proper credit is not a defense against copyright infringement. Copyright infringement is using a work without the copyright owner's permission.  By contrast, you can plagiarize material not protected by copyright simply by taking credit for it. 

3.       I don't need permission because I only use a few words.

Not necessarily. How much you can borrow is a legal gray area. Sometimes, a small but important portion borrowed from a work can infringe. Since copyright law encourages creativity and innovation, courts may excuse specific socially productive but unauthorized uses. Those uses are called fair uses.  Fair use is a defense against the rigid application of copyright law. It is determined on a case-by-case basis. It considers what's been borrowed, how much was borrowed, how it was used, its importance, and the economic impact it may have on the original.  If you borrow the "heart" of a work, it weighs against fair use. Creative works are less amenable

to a fair use defense.    
 

4.       I don't need permission because I will adapt the original work.

No. You can't make a work your own by adapting it without permission.  Copyright law grants copyright owners the exclusive right to control modifications to their work. 

5.       Since the work is in the public domain, I don't have to clear permissions.

Not necessarily.  For example, a book or motion picture may have fallen into the public domain for technical reasons, but there may still be copyrights to contend with. While a book may be in the public domain, photos or other materials that appear in the book may remain legally protected.  Similarly, the composer of an in-copyright soundtrack to an otherwise public domain film can restrict the exhibition of that film by claiming a right to the music within.  If a character falls into the public domain, the former copyright owner may still stop the commercial use of that character if the use falsely implies their support of the use.         

6.       My publisher will handle the permissions.

Probably not.  Most publishers place that burden of clearing and paying for permissions on the author's shoulders.   

7.       I can always obtain permission later.

Later may be too late. Copyright owners have the unfettered right not to grant you permission.  However, it is better to know now than later that a critical component of your work cannot be cleared for use.    

8.       Since I plan to use it for nonprofit educational purposes, I don't need permission.

Not necessarily.  The issue isn't the user; it's how the work is used. If the use falls outside the bounds of fair use -- even a nonprofit educational institution can be held liable for copyright infringement.  

9.       I don't need permission because the work I want to use is more than 75 years old.

Not necessarily. For works published after January 1, 1978, copyright protection lasts for the author's life plus another 70 years.  For a pre-1978 work by a sole author, the maximum term of copyright protection is 95 years from the date the work was published or registered.  For a work created by an employee within the scope of their work or a specially commissioned work, copyright persists for 95 years from publication or 120 years from the date of creation, whichever expires first.

10.      The material I want to quote is from an out-of-print book. Out-of-print means that the work is in the public domain.  Correct?

Not necessarily.  Out-of-print does not mean out-of-copyright.  When a book goes out of print, it usually means it is no longer profitable. While that may trigger an author's right to reclaim their copyright, it doesn't mean the book is in the public domain. See #9 above. 

11.     A Creative Commons ("CC") license means I can use the material without permission.  

Yes, but restrictions may apply.  A CC license allows specific uses for free. What those allowable uses are will vary.  For example, some CC licenses place restrictions on commercial and uncredited uses.  Some permit modifications; others may not.  To determine what is allowable, you must read the license carefully.  
  

12.    I found a photo on the Internet.  Since it was uncredited, I can use it in my book.    

Not true.  The ease with which users can upload or download online content nor the fact that content was posted anonymously on the internet places it in the public domain. 

 

 

Related:
A Primer on Fair Use

            Book Title Clearance & Trademark Registration Guide

            Book Contract Negotiation Checklist

LLOYD J.  JASSIN has practiced publishing, entertainment, and trademark law for over two decades.  Before becoming an attorney, he was Director of Publicity for Prentice Hall Press, a division of Simon & Schuster.  He is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).  Contact: The Law Offices of Lloyd J. Jassin, 1501 Broadway 12th FL, New York, NY 10036 | (212) 354-4442 (tel.) | Jassin@copylaw.com www.copylaw.org | Twitter

DISCLAIMER:  This article is not intended as legal advice.  Because the law is not static and one situation may differ from the next, the author assumes no responsibility for actions taken based on information contained in this article.  Furthermore, be aware that the principles contained in this article are subject to exceptions and qualifications.  Thus, when in doubt, seek legal advice from an experienced copyright or media law attorney, or err on the side of caution and obtain permission or an appropriate release.

The Author's Estate: A Primer for Authors, Executors & Heirs

By Lloyd J. Jassin & Ronald M. Finkelstein 

This article focuses on lifetime planning to ensure the beneficiaries of your literary estate are in a position to take control of your copyrights and legacy.

The control and licensing of published and unpublished works is a tremendous responsibility. Long-term planning is needed because copyrights are long-term propositions. For works published before 1978, copyrights last for 95 years from the date of first publication. For works created after 1977, copyright lasts for the author's life plus another 70 years.

Who will deal with the myriad of issues that arise during the life of a copyright? Read on.

How to Keep Your Work Alive

While you may be able to play catch-up with legal formalities during your life, unless you have a well-drafted will or have created a valid trust (or both) for the benefit of others, you have left the ownership and care of your creative or literary legacy mainly to chance.

John Keat's 1820 Will

Ideally, authors should name a "Literary Executor" in their will.  An "executor" is responsible for settling a deceased person's estate. Among the duties of a General Executor (as opposed to Literary Executor) are contacting an attorney to file a petition for probate of the will; collecting debts owed to the estate; filing for life insurance and other benefits; contacting an accountant (or attorney) to prepare the decedent's final income tax returns, a federal estate tax return, and state estate and inheritance tax returns as may be required; and notifying the beneficiaries named in the will. 

A Literary Executor, as opposed to a General Executor, is the person selected for the limited purpose of managing your published and unpublished after you pass on. The person responsible for keeping your works and reputation alive can be a family member, a trusted business associate, collaborator, agent or attorney, or some combination thereof.

One court described the Literary Executor's role as "requir[ing] a delicate balance between economic enhancement and cultural nurture." Suppose you have made the appropriate provisions in your will. In that case, your Literary Executor will distribute all of the literary property you owned at the time of your death and manage your literary estate on an ongoing basis.  

The Literary Executor, acting on behalf of the beneficiaries under your will (e.g., family members, a designated charity, a research library or archive), will be responsible for entering into contracts for the exploitation of your copyrights and other intellectual property rights; controlling access to unpublished works; collecting royalties; maintaining your copyrights and legacy; and, if called for, donating your letters, unpublished manuscripts, and other literary materials to a library, special collection or historical society. 

Unlike a general executor who gets the deceased's estate ready to distribute, the literary executor's job is not for a limited time.  It is coextensive with the life of the copyright.

Because of the enduring and changeable nature of copyrights (e.g., revised editions, film adaptations, new technologies), the duties of a Literary Executor, or Literary Trustee, projects decades into the future and are ongoing. 

Be forewarned.  Copyrights are complicated. For example, a literary executor is trusted to advise an author's heirs on the process of copyright termination.  The Copyright Act gives an author's heirs the inalienable right to terminate certain agreements made during an author's lifetime - even if those agreements were in perpetuity.  The mechanics of the termination process are astonishingly complex. Notices must be served within a prescribed period.  If the author's heirs miss the window or file an improperly drafted notice, the grant or transfer made during the author's lifetime continues in full force for the life of the copyright.    

Selecting a Literary Executor

A General Executor will often be a spouse or other family member entrusted with the moral and financial responsibility of protecting copyrights, entering into contracts, and guarding reputations. Because of the specialized nature of these responsibilities, you should consider entrusting the care of your papers, existing contracts, and unpublished works to a Literary Executor, who may, or not be, a family member. 

According to DG Copyright Management, a literary executor oversees "the artistic integrity of the work work and upholding the author's intent."  By taking the time to carefully select a Literary Executor, you lessen the likelihood of bitter infra-family disputes over control of your work or work. Family squabbles over copyright control can easily frustrate the ability of scholars, publishers, and producers who want to quote, publish or produce your work.  And, if your final wish is that your unfinished manuscripts go unpublished, you can provide in your will that your Literary Executor destroy your unpublished works after your death. By way of example, Ernest Hemingway (1898 - 1961) made it clear during his lifetime that he did not want his unfinished and unpublished story fragments and manuscripts published after his death. However, since his will was silent on the subject, his estate edited and released not just his early stories but three unfinished novels (one of which was a posthumous collaboration with his son, Patrick). All three were reviewed poorly.

Ideally, your Literary Executor should be someone who understands how the publishing industry works. That person should also be comfortable with negotiating contracts and savvy enough to hire an attorney with appropriate expertise. A Literary Executor should also be someone who will carry out your intentions - even at the expense of your beneficiaries of foregoing untapped royalties. And, since all things come to an end -- including Literary Executors -- you should provide in your will for a replacement when the estate's Literary Executor dies or becomes incapacitated.

Defining the Literary Executor's Duties

Because the duties and powers are not defined by statute, the person drafting your must take great care in describing the scope of your Literary Executor's duties. The powers of a Literary Executor should be as broad and comprehensive as possible, unless, of course, you believe there should be limitations, qualifications, or conditions imposed upon your Literary Executor (e.g., different executors appointed for book publishing and theater-related matters).

In preparing the powers of a Literary Executor, you must consider the following questions: 

• Will the Literary Executor have the sole and exclusive right to make all decisions regarding appropriate publication, republication, sale, license, or other exploitation of your work? Or, should she merely be appointed as an advisor to the General Executor?
• Will the Literary Executor be responsible for preparing unfinished or unpublished manuscripts for publication and seeing those works through publication? 
• Will the Literary Executor have the right to terminate copyright licenses?
• Will they have the power to destroy any letters or papers they believe should be destroyed? 
• In return for their services, will the Literary Executor receive a fee or commission for their services? What is fair compensation? What about reimbursement for expenses? 
• Will the Literary Executor be required to maintain a separate bank account for such monies? 
• Will the Literary Executor have the sole right to sue for infringement of copyrights? 
• Will the Literary Executor have the authority to pay accountants, attorneys, agents, subagents, and others? 
• In the event the Literary Executor is unwilling or unable to perform her duties, what are the provisions for appointing her successor? Or, will the General Executor assume those duties?

While a family member may agree to work for free, attorneys and literary agents will most likely seek a fee of between 10% and 15% for new contracts they negotiate on behalf of the estate. Concerning administering existing contracts, fee arrangements can vary greatly depending upon the size of the literary estate and the responsibilities of the Literary Executor.

The Literary Trustee 

In some instances, an author may create a lifetime (“inter-vivos”) trust and transfer literary assets to the trust. In this case, a trustee will be appointed to carry out responsibilities similar to an Executor. In such instances, the author appoints a "Literary Trustee" who acts in much the same manner as a "Literary Executor" would under a decedent's will. Furthermore, suppose an author names a trust as the beneficiary under their will. In that case, the author must also name, in addition to a Literary Executor, a Literary Trustee (who could be the same person) to continue acting in such a capacity after the literary assets have been transferred to the trusts.

Valuation

Suppose you have accumulated enough wealth so that your assets will be subject to an estate tax upon your death. In that case, the executor will be responsible for valuing all of your assets at that time, including manuscripts, copyrights, and contractual rights derived from the publication and reproduction of your works. The Executor (or Literary Executor, as the case may be) should hire an appraiser with significant experience in appraising -- or valuing -- these interests. Authors with significant estates should meet with their attorney or accountant now to determine whether any lifetime planning can be employed to reduce the value of their estates at their death so that more assets can pass to their heirs.  

(c) 2002 -2022 Lloyd J. Jassin and Ronald M. Finkelstein.

Lloyd J. Jassin, JD, is a licensing, copyright, trademark and media law attorney who represents creators and their producer and publisher partners. He counsels clients on contract, licensing, copyright, trademark, unfair competition, libel, right of privacy, and general corporate law matters. His practice includes drafting and negotiating publishing and entertainment industry contracts, intellectual property due diligence, trademark prosecution, dispute resolution, and litigation. He is a graduate of Benjamin N. Cardozo Law School and is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).  He can be reached at 212-354-4442 or via email at Jassin@copylaw.com, or you can visit www.copylaw.org. 

Ronald M. Finkelstein, JD, CPA, is a Tax Partner at Marcum, a nationally recognized accounting firm and national Co-Partner-in-Charge of their Trusts and Estates Practice group. He can be reached at 631-414-4370 or by e-mail at ronald.finkelstein@marcumllp.com, or you can visit his firm's website at www.marcumllp.com)

NOTICE: This article discusses general legal issues of interest and is not designed to give specific legal advice pertaining to specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

Related Posts 

Copyright Termination 

 

Overlapping Trademark and Copyright Protection

By Lloyd Jassin

Like Madame Curie and Mariah Carey, copyrights and trademarks are sometimes mistaken for each other - the irony is that the fundamental purpose of trademark law is to avert consumer confusion.  

Trademarks protect brand recognition and reputation. They do so by preventing others from copying source identifies such as words, slogans, illustrated characters, series titles, and logos, that allow consumers to distinguish the source of one product or business from another. Copyright law protects original works of authorship, including literary, dramatic, musical, artistic and sculptural works.

While copyrights and trademarks protect different property interests, brand owners can use both to protect their exclusive rights.  Take, for example,  Trix cereal. The way the Trix cereal box is dressed up for sale at your local market, with bright colors and bold graphics, and other branding elements, conjures up an association with General Mills. The body of law that protects the overall look of the Trix cereal box is called trade dress - a subset of trademark law. Trademark law also protects the Trix name, logo, cereal mascot, and the marketing slogan, Silly Rabbit, Trix is for Kids.  

Coexistent with trademark protection, General Mills has in its intellectual property arsenal copyright law with which to protect their cartoonish cereal mascot against unauthorized copying. Currently, enforcement opportunities are available to copyright owners that are not available to trademark owners. Only copyright owners can use the Digital Millennium Copyright Act (DMCA) to have infringing online content removed without resorting to litigation. Internet service providers have a legal obligation to put the content back up if the person tagged as an infringer in a take down notice sends a counter-notice stating they believe the copyright owner is wrong. Unless the copyright owner commences a lawsuit within 10 – 14 days of receiving the counter-notice, the content goes back up. The prerequisite for filing a copyright infringement lawsuit is registration with the U.S. Copyright Office. If you register a work before it has been infringed, you may be entitled to receive statutory damages. If you can prove the infringement was willful, you may be entitled to the maximum amount of statutory damages, which is $150,000.  Otherwise, you might only win actual damages. Statutory damages provide an incentive for brand owners to register their copyrights.

Finally, patent law, another layer of intellectual property, protect General Mills' proprietary process for turning a yummy slurry of "sucrose, fruit puree, and calcium carbonate" into gay little corn puffs in a rainbow of colors. Three legal theories . . . one silly rabbit. 

The Trix rabbit's attempts to use disguise (e.g., balloon seller, Bugs Bunny) and deception to flimflam children into giving him a bowl of cereal are cartoon con games punishable in the court of cartoon justice. However, when deception is used to steal customers from General Mills, that constitutes trademark infringement and unfair competition. 

 ### 

 How to Distinguish Kix from Trix Brand Cereals (Satire)

“Atomic Bomb” ring from a box of Kix cereal? You can't make this stuff up.

 

KIX® has been dedicated to helping kids get a bright start to their day since 1937. - General Mills

 

In 1947, General Mills offered kids a new way to light up their day -- with a Kix (not Trix) atomic "bomb" ring cereal box premium.  Kids would send in a cereal box-top with a small amount of change taped to it, and receive in the mail a Kix Atomic Bomb Ring. Atop the ring was a nuclear warhead that held a secret compartment.  A cold war lens of history found in a box of Kix cereal.

According to the Toy Tales website, after removing the red base of the warhead, kids could look "through [a] toy spinthariscope’s (a device for observing individual nuclear disintegrations) plastic lens while in a dark room [that] revealed flashes of light."      

The ring's instructions read, "you'll see brilliant flashes of light in the inky darkness inside the [ring's secret] atom chamber."  The frenetic streaks of light were caused by polonium alpha particles in the chamber striking the ring’s zinc sulfide screen.  No worries. The traces of polonium, a rare and highly radioactive metal discovered by Madame Curie (not Mariah Carey), only had a half-life of 138 days. 

During WWII, General Mills (not a real general) helped the war effort by working on torpedoes and gun sights for the U.S. military.  As the maker of the quintessential American breakfast and defender of the American homeland, the leap from torpedoes and gun sights in 1944 to atomic bomb rings in 1947 must-have made sense on the page.  

General Mills introduced the borderline confusing Trix brand cereal in 1954 as an alternative to their healthy corn puff cereal Kix.  Their distinguishing characteristics?                                       

Trix is for kids . . . not rabbits.

Once upon a time in America, Kix kids glowed in the dark.