Beyond the Tolkien Estate

[The Saucepan Man]

Originally Posted by Mithalwen

It sounds like the kind of nice distinction that could rack up a lot of billable time for the legal profession.

Sorry, I don't see the problem here.

Names are not afforded the protection of copyright law, so neither the Tolkien Estate nor the owners of the film and merchandising rights could prevent "The Shire" being used in another artistic work. Nor, for that matter, could they prevent the names "Legolas" or "Bilbo Baggins" being used.

But the debate above takes us into the realms of domain names, which is a new and developing area of law. I think that it is more akin to "passing off" whereby a business is entitled to sue a second business which does something which might mislead the public into believing that the activity is associated with the first business and therefore might allow the second business to trade off its goodwill (such as marketing a product which looks sufficiently similar to another as to be likely to mislead).

So, if someone is using a domain name which might be said to be trading off the goddwill of another, then that other person has a right to stop them. Although I fail to see how a (presumably) non-profit making Tolkien based website could be said to be trading off his works.