Whats in a name? Literary characters as registered trade marks

Abstract

This chapter explores the scope for protecting literary character names under the registered trade mark system. It identifies considerable obstacles to registration. Character names embedded in works are not presented as signs in the marketplace. Titles containing character names have little, if any, capacity to commercially distinguish creative works, because consumers view titles as descriptions of the content of the work rather than signifying who is responsible for bringing it to market. Generating factual distinctiveness through extensive use of a literary character name will be very difficult to achieve. There is scope to register character names in relation to creative products where the character has become a product or franchise itself or is part of a series. The limited scope for registering literary characters as trade marks is a desirable policy outcome, preventing the conferral of a kind of perpetual copyright through the registered trade mark right.