Stouffer Woman?

[heidi.h.tandy.c92 at alumni.upenn.edu]

No: HPFGUIDX 14835

--- In HPforGrownups at y..., "Roy Mallett Jr" <wr7238 at w...> wrote:
> I haven't heard of this person mainly because my boys keep me busy 
with
> school projects. So could someone explain who she is and why she is 
doing
> what she is to our favorite author of our favorite books? Thank 
you, from
> witchwanda2002.

My long response to this is at 
http://groups.yahoo.com/group/HPforGrownups/message/12672 - I'm doing 
the FAQ on this subject, and am also a trademark attorney, so there's 
some legalese in there, but I do discuss her claims, what trademark 
and copyright law mean & give some links to other websites that 
discuss her "case".

Just a reminder on the law - it does NOT matter if JKR ever saw the 
Stouffer books, since it's a TRADEMARK case. Trademarks are accrued 
by use, not by registration, so any use of a mark in connection with 
goods or services (even a dictionary word like the use of APPLE for 
computers) creates a trademark as long as the term isn't descriptive 
(SWEET for juice) or generic (APPLE for, well, apples). 
That's why we trademark attorneys do searches of PTO records and 
common law usages and domain names EVERY time one of our clients 
wants to adopt a mark - to make sure nobody else is using it. 
HOWEVER, elements of fictional characters entitled to this protection 
include their name, appearance, costumes, and key phrases. A writer 
could create a comic book with a crime fighting super hero who has 
super-human strength and the ability to fly. However, if he has his 
hero wear a red cape with the letter "S" on his chest, even if the 
character is called StupendoMan, consumers would see the image and 
believe it was "that other guy." 
The most relevant case I've found is Frederick Warne v. Book Sales 
Inc. (the Peter Rabbit case). The plaintiff published children's 
books and brought suit against a competitor for trademark 
infringement as it related to the illustrations in a series of books 
about the Beatrix Potter character, Peter Rabbit. The court said, "It 
would not be enough that the illustrations inquestion have come to 
signify Beatrix Potter as author of the books; plaintiff must show 
that they have come to represent its goodwill and reputation as 
Publisher of those books." Under trademark law, the illustrated 
representation of a character, like ELMO or MICKEY MOUSE is 
protected, IF they act as an indication of origin, BUT the same is 
not true for strictly literary characters, and the NAME of the 
illustrated character (like LILLY POTTER or THE KEEPER OF THE KEYS) 
is not protected - just the way it looks. 
ARTHUR the aardvark gets this kind of protection. So does JAMES BOND. 
So do HARRY POTTER and DRACO MALFOY and ALBUS DUMBLEDORE. Eloise 
Midgen, otoh, doesn't. MRS NORRIS might, but someone could certainly 
write a book involving a catty character named MRS NORRIS and say 
that they took it from Mansfield Park and JKR couldn't do anything 
about it because, um, so did she (we think!)



BTW - Stouffer *was* sued by Scholastic, WB, JKR, etc. She had been 
threatening them with a lawsuit for a few months, and they filed what 
is called a "declaratory judgment" action against her in the Southern 
District of New York (aka NYC) - about 5 months later she filed 
counterclaims against them in the NYC case, some of which were 
dismissed, AND filed suit against the same parties in Pennsylvania, 
where she lives. That suit was dismissed, since it incorporated the 
same issues as the NYC case did, and since the Scholastic Team filed 
first, Stouffer's attempt to do what's called "forum shopping" was 
thrown out by the court.