Another one bites the dust....

[William Cloud Hicklin]

Just maybe, the Estate thinks it just isn't worth trying to sort out the innocent uses of copyrighted material from the less-than savory.

It goes beyond that; it is in fact an imperative created by the nature of trademrk law. You see, a trademark has to be enforced if you want to keep it- if you don't assert ownership continually then the argument can be made, successfully, that the trademark has passed into the public domain as happened to, for two examples, Nylon and Aspirin. Xerox' lawyers were notorious for hurling C&Ds at any and everyone who used "Xerox" as a synonymn for "photocopy," and pretty much succeeded in suppressing it- and it was for that reason. All that's necessary to make such a case is that the trademark-holder has known or even should have known about unauthorized use, and done nothing about it.








--------------------------------------------
Hammond and Scull's frankly creepy literary stalking job I leave in the gutter

[William Cloud Hicklin]

Addendum: this goes back a very long time: the first edition of Dungeons & Dragons included Hobbits, Ents and Balrogs; the Estate forced the change in the 2d ed. to Halflings, Treants and "Type VI Demons (Balor)." Elves, Dwarves and Orcs got through, while retaining heavy Tolkien aspects- but orcs, justified as an obscure A-S word for unspecified monsters, became green with pig-snouts rather than Tolkienian Orcs.

Back to Zaentz: up until a couple of years ago, Zaentz' cash-milking operation was called "Tolkien Enterprises"- and far, far too often not only the Intertubes but clueless "professional" media reported Zaentz' near-constant suits against assorted "Hobbit Cafes" etc as originating with the Tolkien Estate. The name was abruptly changed to "Middle-earth Enterprises," without explanation; but I suspect it had to do with the Estate exercising pressure.

[Inziladun]

Originally Posted by William Cloud Hicklin

[I]It goes beyond that; it is in fact an imperative created by the nature of trademrk law. You see, a trademark has to be enforced if you want to keep it- if you don't assert ownership continually then the argument can be made, successfully, that the trademark has passed into the public domain as happened to, for two examples, Nylon and Aspirin. Xerox' lawyers were notorious for hurling C&Ds at any and everyone who used "Xerox" as a synonymn for "photocopy," and pretty much succeeded in suppressing it- and it was for that reason. All that's necessary to make such a case is that the trademark-holder has known or even should have known about unauthorized use, and done nothing about it.

That would explain a great deal, including the question of why the Estate takes a firm stance against non-profits as well as the parasites. It seems logical from a legal standpoint that they could not differentiate.
It isn't an ideal setup, but if that's the way they have to play the game, what can they do about it?

Originally Posted by William Cloud Hicklin

Addendum: this goes back a very long time: the first edition of Dungeons & Dragons included Hobbits, Ents and Balrogs; the Estate forced the change in the 2d ed. to Halflings, Treants and "Type VI Demons (Balor)." Elves, Dwarves and Orcs got through, while retaining heavy Tolkien aspects- but orcs, justified as an obscure A-S word for unspecified monsters, became green with pig-snouts rather than Tolkienian Orcs.

I can remember that. I was a novice D&Der back in the day, and I recall my father having the first edition game, which did name "hobbits". That indeed did not last long.

[Mithalwen]

It is the the Saul Zaentz company that owns and guards the trademarks as WCH has pointed out , and it is worth pointing out since it is tediously and somewhat odiously fashionable to blame CRT personally for all these incidents.

Local to me are two pubs/restaurants with Hobbit names. One has had no trouble since it does not sell merchandise or give TM names to its drinks or dishes. The other which was in the news with the Estate wrongly getting the blame did sell stuff and theme the menu was allowed to continue on payment of the very modest sum of £70 for a license.

[Bêthberry]

Originally Posted by William Cloud Hicklin

It goes beyond that; it is in fact an imperative created by the nature of trademrk law. You see, a trademark has to be enforced if you want to keep it- if you don't assert ownership continually then the argument can be made, successfully, that the trademark has passed into the public domain as happened to, for two examples, Nylon and Aspirin. Xerox' lawyers were notorious for hurling C&Ds at any and everyone who used "Xerox" as a synonymn for "photocopy," and pretty much succeeded in suppressing it- and it was for that reason. All that's necessary to make such a case is that the trademark-holder has known or even should have known about unauthorized use, and done nothing about it.

So why do all the other entities continue to use the name Rivendell and presumably have not been approached by the Estate? In fact, given how many do use the name, it would appear that for all intents and purposes the name has passed into the public domain.

Originally Posted by Mithalwen

It is the the Saul Zaentz company that owns and guards the trademarks as WCH has pointed out , and it is worth pointing out since it is tediously and somewhat odiously fashionable to blame CRT personally for all these incidents.

Mithalwen, according to the new reports, it was the Estate which contacted the children's camp: Tolkien Estate makes Alta. camp drop name

[Morthoron]

Originally Posted by Bêthberry

So why do all the other entities continue to use the name Rivendell and presumably have not been approached by the Estate? In fact, given how many do use the name, it would appear that for all intents and purposes the name has passed into the public domain.



Mithalwen, according to the new reports, it was the Estate which contacted the children's camp: Tolkien Estate makes Alta. camp drop name

I am very sorry Beth, but I must issue a C&D against you post-haste. You see, I've recently trademarked the word "the", and you have infringed on my trademark seven times in the past two paragraphs. I will ignore your use of the word "it" as you only used the word twice and I have a patent pending on "it".

[Mithalwen]

Originally Posted by Bêthberry

Mithalwen, according to the new reports, it was the Estate which contacted the children's camp: Tolkien Estate makes Alta. camp drop name

That report is ambiguoud and has already admitted misascribing responsibility, which considering the interviewee has the letter indicates a fairly low stamdard of journalism. Referring to the 3state as an entertainment giant is odd. Not at all confident that Tintin didn't misread his shorthand and transcribe estate for enterprises. Unless for some technical legal reason the Estate is obliged to protect Zaentz's trademarks becauseZaentz does own just about every Tolkien proper name aa the boxes of the geeksploitative plastic tat will show.

However maybe it should also be remembered that while, according to the Carpenter bio, Tolkien was willing to suggest names for people like the cattle farmer, he DID think people should ask..

[davem]

As far as the word 'Hobbit' is concerned, we've just seen a recent case of a movie using the word Hobbit being effectively banned http://www.bbc.co.uk/newsbeat/20781777 Given that there was no connection between the movie & Tolkien's work other than the name Hobbit & that Tolkien didn't actually invent the name Hobbit I don't know what the lawyers, or the judge were up to with this one.

Since Tolkien's death the man & his life's work have moved increasingly towards becoming just as much a 'brand' as 'Disney' is. In place of the famous 'Disney' signature we have the JRRT monogram & the Estate & its lawyers are driven by nothing less than a desire to control everything to do with Tolkien.

The children's camp thing (let's not forget that proper names cannot be copyrighted - plus the fact that Rivendell is basically a compound of two standard, if slightly archaic, english words: riven=broken or split, dell=valley. Claiming you hold the copyright on riven+dell is about equivalent to claiming you own the copyright on foot+print & only a lawyer would try that one) was a thoroughly unpleasant act of legal thuggery. And preventing publication of the Hilary biography came across as a very shady misuse of copyright law because they weren't able to twist existing privacy laws to their purposes.

I do wonder whether there would be as much tolerance for the Estate's behaviour if it didn't include member's of Tolkien's immediate family. If it was made up of business people lawyering up at the slightest 'provocation' I wonder if people would still be so eager to see their side of things.

Interestingly, the author of the Mirkwood novel actually stood up to the Estates lawyers & took the case before a judge, who threw the case out & sent the Estates lawyers off with a flea in their ears (as we used to say). I suspect that most of the other cases would go the same way - if those being threatened were to stand up.

[Inziladun]

Originally Posted by davem

The children's camp thing (let's not forget that proper names cannot be copyrighted - plus the fact that Rivendell is basically a compound of two standard, if slightly archaic, english words: riven=broken or split, dell=valley. Claiming you hold the copyright on riven+dell is about equivalent to claiming you own the copyright on foot+print & only a lawyer would try that one) was a thoroughly unpleasant act of legal thuggery.

Well, you could also say Grey Havens and The Shire ought to be open use, since they too have meanings outside the realm of Tolkien. But why use names like that, unless the Tolkien connection (and accompanying publicity) is what you're aiming for?

[davem]

Originally Posted by Inziladun

Well, you could also say Grey Havens and The Shire ought to be open use, since they too have meanings outside the realm of Tolkien. But why use names like that, unless the Tolkien connection (and accompanying publicity) is what you're aiming for?

So they should - you cannot legally appropriate standard English words & then prevent people using them. The idea that an author could take a word in everyday use & then stop anyone else using that word because the public might make some connection between their use of the word and someone else's is a nightmare scenario. Tolkien actually 'profited' in the same way by his use of Elf, Dwarf, Goblin, Dragon, (not to mention Shire - used purely because of its 'English' connotations & Mirkwood - used because of its Germanic ones). If Tolkien hadn't wanted people to profit from the name Shire he shouldn't have used it, & made up a name of his own for the Hobbits' homeland.

[Aiwendil]

Originally Posted by Davem

As far as the word 'Hobbit' is concerned, we've just seen a recent case of a movie using the word Hobbit being effectively banned http://www.bbc.co.uk/newsbeat/20781777 Given that there was no connection between the movie & Tolkien's work other than the name Hobbit & that Tolkien didn't actually invent the name Hobbit I don't know what the lawyers, or the judge were up to with this one.

It should be pointed out that that action was taken by Zaentz and the movie studios, and not by the Tolkien Estate.

And really, to claim that a parodistic movie called 'Age of the Hobbits' has nothing to do with Tolkien's hobbits is ridiculous. Or are we to suppose that it's a parody of the Denham Tracts, and that the title was chosen at random from among other choices such as 'Age of the Hodge-pochers' or 'Age of the Chittifaces'?

[davem]

Originally Posted by Aiwendil

It should be pointed out that that action was taken by Zaentz and the movie studios, and not by the Tolkien Estate.

And really, to claim that a parodistic movie called 'Age of the Hobbits' has nothing to do with Tolkien's hobbits is ridiculous. Or are we to suppose that it's a parody of the Denham Tracts, and that the title was chosen at random from among other choices such as 'Age of the Hodge-pochers' or 'Age of the Chittifaces'?

It doesn't matter what their motives were. Even if they were cashing in on Tolkien's work Tolkien didn't invent the word Hobbit. Or are you saying every film which appears over the next few years which has has Elf, Dwarf, Goblin, or Dragon in its title should be banned?

And if an author was to write a novel based around the Denham Tracts & had Hobbits as characters (obviously not like Tolkien's Hobbits) should he or she be prevented from publishing it? To what extent should Tolkien's use of myth & folklore prevent anyone else from using it also?