Can I name my character a certain way, even if the name has already been taken?

[TroyVSTheWorld]

Can you just put a "Any similarity to actual persons, living or dead, or actual events, is purely coincidental." tag at the bottom and call it a day?

EDIT - me posting that then literally realizing it says absolutely nothing about fictional names already taken

[TheDoublekey]

Woah, yeah I definitely wouldn't want to get sued by anyone let alone my neighbors . Ok, jokes aside, I agree with what you said. It's a matter of: are you willing to risk it? I think I would rather play it safe and change the name but it also feels sad, since I've got accustomed to it.

[Lensing]

I learned my lessons over the years and I got really careful with names and the risk of getting letters from
lawyers and also people´s advice about legal matters and copyright

[NickRowler]

It depends on what the characters name is. I have a character named Mistique and there is an X-men character with a similar name. But that is also just a person’s name, Marvel can’t own a name. If my character was also blue with red hair, then there might be an issue.

If you have a character named Bumblebee, well there are several characters with that name. It’s an animal, you can’t copyright it. The issue arises when your Bumblebee looks like another person’s character.

[TheDoublekey]

Mmmh... well, my character's name is that of a natural phenomenon, so you have that. Only thing that kinda worries me is the fact that I found out they have one more thing in common while reading on wikipedia.

The designs, backstories, motivations and overall personalities are completely different.

Guess I'll keep the name for now along with other options just in case. They don't have other similarities besides the one I've already pointed out.

[NickRowler]

Well, you also don't want people to be distracted. If your character's name was Starfire, I would say yes, do change it. Like there is nothing stopping you from naming your character Elmo, Homer, or Rudolph, but readers might be a bit distracted because those are also names of iconic characters. I had a character I originally wanted to name Luna but MLP fans used to freak everytime they say someone with that name so I changed it (not so much an issue now but was an issue back when I started).

What is their name?

[Kelheor]

Name and the power? I think the question will be if you really want to name the character like that and not only because of legal reasons. Maybe change the name just a bit? So that readers won't say they strongly associate your character with that particular DC one (if it's a popular character). If it's a natural phenomenon you can... try another language, for example? (or something else that suits the character's background)

[TheDoublekey]

The character is called Firestorm and he's basically a fire elemental who will play a pretty important role in the story. After playing Injustice 2, I found out that this other character called Firestorm exists and I decided to read the wikipedia page for more info.

Apparently, it seems, this character became an elemental as well . So yeah, these are pretty much the coincidences.

[BlairFujin]

It is just a word for a big fire according to cambridge dictionary, plus apart from the dc character there is also an old film with this title, some multiplayer browser game, some book series and a... soundtrack on steam by "Lady Firestorm"? 'xD
I really think the worst that could happen to you is you may keep being asked if you were inspired by that dc character

[powerplantanimations]

As someone who's planning a superhero comic this has been difficult for me. I had to rename so many characters, but honestly I think it's for the best? It allows me to create some wacky and out there names.

Like a gun loving alien hunter is named "Chk-Chk".

And his dog is named "Tch-Tch". Because that's the sound I make when I want my dog to come to me.

Or names like an alien dictator being named Totalitarian Eclipse. I'm thinking about changing it because it doesn't quite roll of the tongue, but I may keep it because it's FUNNY. Also his nemesis is sun themed... so it thematically makes sense. The best part is that he was born before the word was even invented so it's just one big coincidence. People loved him too. Like can you imagine being human and hearing people say positive things about "Totalitarian Eclipse".

Yeah, I'm sure that guy's mentally stable.

[TheDoublekey]

Well in that case I would be perfectly ok . This is honestly a big relief. My only fear is that of possibly infringing copyright or trademarks and having to deal with legal stuff lol.

[TheDoublekey]

Yeah, the thing with superhero comics is that the genre is so saturated it's almost impossible to find a name that hasn't been used. As you said, though, it does allow for some creative thinking!

[BlairFujin]

I'll be brutally honest, do you really think your series can become big enough for dc to notice that you named one of the characters like theirs? xD I mean, even if they had a team that's just googling all of their characters' names how deep would they need to dig to get to your stuff? Let's not kid ourselves, we're all way too small of a fish for such big companies to give a damn about ;p

[RobertBMarks]

I never read DC comics and I'm not a huge fan of superheroes, hence why I didn't know this other character already existed. If I had known, I would've probably avoided it and chose another name.

Right...I'm going to put on my publisher hat now, and hopefully clarify a couple of issues...

(For the record, I am a publisher and author, not a lawyer, and this should not be taken as legal advice.)

There are two main forms of intellectual property at play in something like this: trademark and copyright.

Copyright is by far the more common, and it is created as soon as a work is put into a fixed state, meaning that once a character you have created exists on the page, you own that character. This copyright exists for your lifetime plus 50 or more years, depending on the country (Canada is 50 years, much of Europe and the United States is 70 years). And, copyright is mainly based on implementation of an idea.

So, for example, I have a registered copyright for Re:Apotheosis, which means that mech pilot Major Atria Silversword and her mech Volundpanzer are my intellectual property - if somebody uses them without my permission, I can take legal action against them. However, if you create magical knight Lady Atria Silversword who has an entirely different backstory, attributes, and character arc, I probably won't like the fact that you scooped the name, but there is nothing I can do about it - Lady Atria Silversword is NOT Major Atria Silversword, and belongs to you.

A trademark, on the other hand, is very different. A trademark is generally used for a product name, but it is also used for characters such as superheroes. A trademark allows one to protect not just the implementation of an idea (such as Superman), but the name as well. The reasoning is that the owner of a trademark has to prevent confusion and prevent the dilution of the brand. Further, a trademark can be declared invalid if it is not protected by the rights holder - this means that if you decide to publish a story involving a superhero named Superman, there is a very serious incentive for DC to take legal action against you, even if your Superman doesn't have any resemblance to theirs other than the name.

There is a limitation on this, however: you cannot trademark commonly used words (or, at least, such a trademark won't survive a legal challenge). So, Superman can be a trademark, and Mickey Mouse can be a trademark, but not House. Yes, you can have a character named Dr. Gregory House, but you cannot trademark that name and try to prevent others from using the word "House" in their company names or products. Microsoft got into a lot of trouble trying to enforce a trademark on Windows, and nearly had it invalidated on grounds of being too generic a word for trademarking (they avoided this by settling the suit - you can read about it at https://en.wikipedia.org/wiki/Microsoft_Corp._v._Lindows.com,_Inc.).

So, if a character is protected by copyright, you're not in any danger if you accidentally copy the name of that character. If a character is protected by trademark, unless that name is VERY generic and you can prove that lots of other characters have used that name in the past before the trademark existed, you can have a reasonable expectation of legal action being taken once the trademark owner notices what you are doing.

Or, put another way, if the name is trademarked, it's safer to just pick another.

[thecrystalrook]

If I may ask, what is the name you're thinking of using? "Don't use it if trademarked" is pretty high level, and there's several other layers to that.

[TheDoublekey]

Thank you for clarifying! Copyright and trademark are super-confusing and I often find myself mistaking one for the other. So, if I got things correctly, if the name I'm using is pretty generic they can't trademark it, right? The name I'm using is "firestorm", so I believe it should fall under that category. The name has been used for a character, a movie and several other things.

[TheDoublekey]

Sure thing! Here's the info I gave regarding the character.:

The character is called Firestorm and he's basically a fire elemental who will play a pretty important role in the story. After playing Injustice 2, I found out that this other character called Firestorm exists and I decided to read the wikipedia page for more info.

Apparently, it seems, this character became an elemental as well . So yeah, these are pretty much the coincidences.

[thecrystalrook]

Doesn't seem like DC has any registered trademarks for that name. None of the USPTO trademarks for it are in the same category, so you'd be fine on that front.

However, the character is coincidentally similar and so you'd probably be best to change it

[TheDoublekey]

Yeah, I didn't find anything in the USPTO, but I've checked on the WIPO (global brand database) to make sure and it seems to be there, unfortunately. I'll try changing the name as much as I can. I've been looking for a few options and I believe it's doable, since the character hasn't even been introduced in the story, yet. However, I'm afraid I can't change the character itself, because he's a pretty major player.

Anyways, I want to thank everyone who gave their answer on this thread. Sometimes things get a little confusing for me (especially this kind of stuff) and I need some clarification.

[system]

This topic was automatically closed 30 days after the last reply. New replies are no longer allowed.