Title Clearance, Take Two
So what if you’re not looking to use someone else’s title, but want to protect your own? Well, don’t look at copyrights. Titles fall squarely in the stepchild camp of worthy-items-just-not-worthy-of-copyright, like fashion designs, furniture, and eyeglasses. So maybe you’re thinking, wait, what about trademarks? Nope, trademarks for titles doesn’t really work either, since trademarks identify the source of a product. Translation, your film is the product, so you could trademark the source of your film, your production company name, but that doesn’t buy you much protection for your film’s title. Unfair competition, though, will be your friend. In a nutshell, the Lanham Act is a federal law designed to do two things: foster fairness between businesses and protect the public from being misled. And using the Lanham Act, if you can convince a court that: (a) you have created a secondary meaning in all or part of your title, such that the public associates it with you, your film, or your production company, and (b) the public was dupes into believing the film was the anticipated sequel to your movie; and (c) that the defendant intentionally appropriated your title’s secondary meaning, created by your hard-work and expense, the you can get into court and stand a strong chance of winning on a title claim.