Copyright squawk: 'Cleaver' scribe challenged on title
That euphoria evaporated, however when she got a letter from Patricia Barth, a Shokan, New York, resident who claims that Gardiner's book title infringes Barth's trademark on "Planned Parrothood." Barth registered the term in 1983 for mail order and retail services for exotic birds and supplies, according to the U.S. Patent Office website.
On January 28 of this year, Barth re-filed for the trademark, this time to provide "on-line information via the Internet in the fields of animals and pets, relating to breeding, selection of the animals and pets, grooming, feeding and nutrition," according to the Patent Office.
The Patent Office records indicate that the trademark lapsed in 1989. Should Barth really fight the author of Sleeping with Ward Cleaver?
"It's an exclusive trademark," says Barth, claiming that during the 20 years that her mark had elapsed she still had the right to "common-law use."
Barth alleges there are similarities between her website and Gardiner's upcoming book–- particularly on the topic of African Gray parrots.
"Somebody might buy her book and think it's a legitimate Planned Parrothood book," complains Barth. "Not only that, [the title is] disparaging to African grays, which I breed."
However, Gardiner contends that her memoir–- which she describes as "David Sedaris meets Marley and Me, only with a powerful, ferocious beak"–- does not chomp Barth's rights.
Barth refuses to say whether she has a lawyer, but says she intends to issue a preliminary injunction against Gardiner's book and believes the matter is going to court.
She says she's sending out Digital Millennium Copyright Act notices, and warns that even the Hook could be in violation.
"I am going after everyone," she vows. And she tells the Hook that it could be liable for writing about the issue and giving Gardiner pre-publication publicity, which is "almost a double violation," she contends.
"Please immediately remove the word 'parrothood' wherever it appears in this online publication," she writes. "It is a violation of my trademark rights that I own exclusively."
Barth says she too has written a book, but declines to provide the title and suggests the Hook look it up. (The U.S. Copyright Office lists a 1987 title, Bird of 1001 unique bird names.) She also has written articles and says she's compiling material for future books.
Barth owns about 20 parrots and after devoting her life to parrothood, she's aggrieved that Gardiner refuses to change her title. "It's disgusting," fumes Barth. "She knows it's an exclusive trademark."
But does Barth really own the term "parrothood"?
"No, you don't automatically get the right to exclude people from using subparts of your trademark," opines Dale Jensen with Zobrist Law Group.
Barth's TM is "for the term 'Planned Parrothood' and not the term 'parrothood' by itself," concurs intellectual property attorney Sheldon Parker.
In her letter to the Hook, Barth alleges that this newspaper's "pre-publication publicity won't be tolerated in accordance with the Lanham Act (dilution and tarnishment)."
"The anti-dilution provision of the statute applies to famous marks," points out lawyer Parker. "Toyota, Microsoft, and RCA would qualify as famous marks." He suggests that "planned parrothood" could fall short of the higher standard.
"Trademark infringement is based on confusion in the market place," he explains. "If two competitors are not in the same market place, sell through different channels, and/or sell to different categories of customers, then confusion is unlikely."
The term "parrothood" pops up about 2,500 times in a Google search. Barth is undeterred.
"You're interfering with justice," Barth counsels the Hook. "This is a federal case."
Update 3/25/2009: Barth says the title of her 1987 book is listed incorrectly in the U.S. Copyright Office and is Book of 1001 Unique Bird Names.