Cease and De…What???

Got a lovely email today:

“Fighting Gravity v. Leah Petersen, et al. – Trademark Infringement”

Is this trademark infringement?

Now isn’t that what every girl wants to read as she’s sitting at the dentist’s office while the kids are getting their semi-annual cleanings?

Well… no, actually.

The claim is from a live-performance group who assert that my use of the phrase “fighting gravity” as the title of my science fiction novel about a couple of teenage guys in a romantic relationship is an infringement on the trademark for their black-light, gravity-defying illusion performance group.

Right. Everyone with me so far?

If I haven’t said before how lovely and wonderful Gabrielle Harbowy, my editor, and Gwen Gades of Dragon Moon Press are, let’s be clear on that now. Before I could even get my bad-mooded self back home, I had emails from them with research and reassurance that I didn’t need to go have a major freak out.

Anyway, there’s lots of stuff on the internet to explain trademark as it applies to authors and book titles. Here’s a great one at Rights of Writers. The point to note is that, according to trademark law*, it’s only infringement if there can be sufficient confusion between the two. I admit, I’ve never seen them perform, so I may be missing something here, but unless they’re up there inventing laser devices and falling in love with the emperor of Earth and other human worlds, I think the opportunities for confusion are rather rare. (Although black-light on the scene where my guys kiss for the first time could be interesting.)

So, no freak out for me anymore. Just hiring a lawyer, apparently. And a much more exciting Wednesday night than I planned for. 😉


*I originally referred to this as copyright law and was set straight by The Passive Voice, who wrote a great explanation of the issue.

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21 Responses to Cease and De…What???

  1. JLGentry says:

    What a waste of time and effort they are causing. I was searching for a book title last week and found three or four of the same title by different authors. Someone should tell them to work on their act instead bothering you.

    Do you need a character witness? Maybe a cake with a file baked in it? I’m your guy!

  2. 🙂 Thanks Jerry!

  3. BigAl says:

    I’m not a lawyer although I sometimes pretend to be one on the internet. 🙂

    My immediate thought was the same as what your research has found. If it was otherwise we’d have seen a suit between fruit growers and a certain computer/iPhone company by now. Hopefully a quick letter from a lawyer will kill this quickly.
    BigAl recently posted..Minor Snobs / Daniel AmoryMy Profile

  4. MP McDonald says:

    Who do they think they are? McDonalds? (I keep wondering when I’ll get a C&D from Micky D’s for using my last name on my books).

    Seriously, I’m surprised they were able to get a lawyer to send the letter when there is no merit to the charge.
    MP McDonald recently posted..Animated Book Covers?My Profile

  5. How exhausting it must be to be litigious AND uninformed! Glad this turned into a non-event. BTW, isn’t there also a song by Blink 182 called Fighting Gravity? Better alert Jane Austen about Pride and Prejudice and Zombies.

  6. The title of my husband’s first novel, East Bay Grease, was stolen from a Tower of Power album. He was assured this was legal. There are tons of books/stories/albums with the same title. I can’t believe someone would sue for this – are they just trying to get attention? In which case, you just did what they wanted!

    Either way, hope it goes away quickly. And I need to order my copy of the book. 🙂

  7. Speaking as your editor: I’ll give you the black light for that scene…as long as they don’t have any of those fuzzy posters on the walls!
    Gabrielle Harbowy recently posted..Odds and EndsMy Profile

  8. Now who do we get to play the guys? ‘Cause you and me just wouldn’t have the same effect. Though that could be interesting too. 😉 Would I be Jake or Pete?
    Leah Petersen recently posted..Weekly Blog Tour Roundup 4/27My Profile

  9. NC Narrator says:

    Wow, that’s…kind of random! A little cool, a little creepy. I think I’d probably freak out just because that’s what I do.
    NC Narrator recently posted..Model BehaviorMy Profile

  10. Paige says:

    A waste of time and money on their part. They’re not even that famous to be so outraged about having the same name as your book. Oh well, I do agree with your point. You gotta win this one! Kudos! 🙂
    Paige recently posted..online photography lessonsMy Profile

  11. Don says:

    You might be interested to know that Cory Doctorow linked to this via boing boing.

  12. Jared says:

    Sounds like interesting kind of book..I cant wait to read it..Thank you for sharing..
    Jared recently posted..Copywriting Company DevonMy Profile

  13. Mike says:

    Aaaaaaaaaaand guess what litigious, black-light, gravity-defying illusion performance group I’ll make sure that I never EVER go see now?

    That’s right. And for the bonus round, guess which litigious, black-light, gravity-defying illusion performance group I’m going to beat to pieces on every blog I comment on?

    I look forward to your book, and since I won’t be bothering to go see any litigious, black-light, gravity-defying illusion performance group, I’ll have plenty of time to read it. 🙂


  14. Who are they kidding?? the name is pretty much generic in a sense. I’m sure would find books with the same title.

  15. Thanks for all the comments and support, everyone!
    Leah Petersen recently posted..Unexpected stop on the blog tour this week…My Profile

  16. MP McDonald says:

    I wonder if they stole their name from this movie? http://www.imdb.com/title/tt0158616/
    MP McDonald recently posted..Entering a New EraMy Profile

  17. Todd Ohme says:

    Well…I’m with you on this one and I think it’s pretty clear you’re in the right…BUT…on a positive note, at least your’re getting some extra publicity for your book! I hope everything works out alright for you

  18. PA Wilson says:

    I wonder who will get the most publicity out of this? I sense that is what it is about. It’s possible that you are not the only one who received a letter from this group.
    PA Wilson recently posted..Creating fictional places, how much is needed to get it right?My Profile

  19. Claire Ryan says:

    They may get a strong case of the Streisand Effect out of this.

    Bottom line here, if you’re not familiar with the law in question, is that you can’t trademark a phrase and then have no one else ever use that phrase anywhere. The purpose of a trademark is to identify a company in a particular area of business and prevent confusion. In this case, you can just look up the trademark entry for Fighting Gravity on the uspto.gov site and check what it says:


    According to the usual ‘moron in a hurry’ test, there is no possible way that anyone is going to confuse a theatrical performance with a sci-fi book that shares none of its design elements. I’m not even sure how they’re applying trademark law to a book title, to be honest. Trademark law is to stop confusion between different companies.

    I”m not a lawyer, and this is just my opinion based on reading, but I’d say your lawyer will just be telling them to get stuffed.
    Claire Ryan recently posted..What Makes a Good Blurb?My Profile

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