How Trademark Applies to User Names

Okay, this went over well on the NaNo boards so I’m going to post it here – cleaned up a little bit – for posterity because those boards get wiped every year when the November rush happens.
Like anyone who’s been on the internets for as long as I have, I’ve encountered no end of argument and discussion about intellectual property. Copyright issues, trademarks, patents, IP, you name it and it seems like someone around here will pop out of the woodwork claiming to be an expert about it. And knowing every last detail about the subject. So listen to what they’re saying because they’re right. Well, I’m no expert in intellectual property law. Or even the law in general. I know a bit about how it works – maybe more than some maybe less than others – but I know that because I’ve been exposed to all the talk about it over the years. And being someone who’s involved in creative things where issues of intellectual property can be particularly important I’ve done some looking into the subject. I’m no expert, in other words, but I’ve been studying this stuff in one way or another for years. And, well, if I’ve learned anything it’s that the whole thing is very subjective and open to interpretation – a lawyer friend once told me the law is whatever you can get a judge to say it is. And even that’s open to appeal. So it’s complicated and I wouldn’t exactly take what I’m saying as the gospel truth but maybe sharing what I know will help you or others to find your own version of the truth.

Anyhow, someone on the boards asked, essentially, if their username was okay because it was based off of the name of spell from a video game (The name’s been changed to protect the uninvolved). And they wondered if that name was copyrighted. Well, the simplest answer is no, you can’t copyright a name.

The more precise answer takes a little while longer because you can trademark one. So, here’s what I wrote back:

Not-so-long answer (ie expect some hasty generalizations): There's a distinction to be drawn between copyright and trademarks. You can't copyright a name but you can make a name your trademark. So any legal protections that Capcom might have against you putting your filthy paws all over their intellectual property - which is, I assume, what you're really worried about - stem from trademark law and not copyright. So it's there that you have to worry.
However, copyright and trademarks aren't the same thing and they don't have the same protection. One key difference is that copyright laws are inherent - you make a piece of work and you automatically have that protection with no effort on your part (exercising it, however, is a different matter). While trademark laws typically require that the mark be both established and, in some cases, registered before it kicks in. That's where you might get into trouble because the result is that companies are required to defend their trademarks - even when they'd rather not - or risk losing them. That's why you might get a cease and desist letter or some such from the Square Enix team and one that, no doubt, will be filled with legal fire and brimstone torts.

I wouldn't worry too much, though, because in most trademark laws (which are pretty much standardized throughout the industrialized world at this point) there's protection for the general public. As long as you're not using that trademarked name in the same way as Capcom you'll be fine. You'd only have a problem, then, if you were to publish a video game with a character or an item named after yourself. (which, there is an argument to be made that your name is just a way of saying a certain kind of "magic" which is far too commonplace to be trademarked by any one company at this point. Still, it definitely features in Capcom games and it would depend just how vigorously they'd want to defend that unique branding of their magic system of which the inspiration for you name is one small part. I wouldn't want to go into court and try and argue against them, let's put it that way.) but using it elsewhere is fine. And perfectly legal (Basically, as long as you're not trying to confuse people that you actually represent Capcom or anything. And you're not infringing on the areas their trademark already covers).

Publishing and trying to sell a book with a character of that name might be a gray issue but that's only if Capcom is doing likewise and trying to extend their trademarked images beyond the video game realm - in which case the law says they have to threaten to sue you, basically, or else they lose the ability to trademark that name in literature (And that might put other spell names in jeopardy as well).

As an example, that's the root of the argument between Apple and Apple that's been going on for years. One's the recording company that holds the rights to the Beetles catalog (or a lot of it, anyway) and the other's the computer company - which is big now but was at one point a lot smaller and less important that the company that could publish new Beetle records. Both held the trademark for "Apple" in their respective fields. Which was fine (sorta) until Apple computers decided to start selling music. That's why, by the way, that Beetles songs haven't been available through iTunes (Until recently - I think they came to some kind of a deal lately. I don't use the service myself or even listen to the Beetles so what do I know?).

Without knowing more about how you're planning to use the name, I really couldn't say. But, for the most part, game companies tend to be pretty lenient in allowing their fans and the wider general public use of such things and I wouldn't give it that much thought.