The Diary of Anne Frank ®   – Trademark abuse

trademark abuse

In addition to adding Otto Frank as an author of Anne Frank’s diary in an attempt to keep the work out of the public domain, some bright lawyer working for the Foundation has successfully filed the book title as a trademark.

The purpose of this is the same. It is to prevent the book from entering the public domain. Trademarks may be renewed for ever. The ramification of this trademark registration is that only books originated or licenses by the Anne Frank Foundation can be titled The Diary of Anne Frank or anything confusingly similar.

No doubt the foundation would argue that this is to protect her integrity as an author and to prevent others from hacking about with the content. This is surprising as apparently they now believe that her father her father Otto did sufficient reworking to be considered as a co-author.

I accept that the title of a book can be an indication of origin and is inherently distinctive. The problem I have is that this development effectively makes copyright unlimited and prevents anyone else from publishing the book unless they give it a totally different name such as the Secret Diary of Adrian Mole aged 13 3/4, Anne of Green Gables, Frankenstein or something sufficiently different from the Diary of Anne Frank®, that no one could possibly be confused.

Since this is flagrant trademark abuse, it should be banned on policy grounds. There are different ways for doing this. I think that the trademark could have been considered as generic for books having the content of the diary since the diary is in the public domain, or it could have simply been refused on the grounds of ‘ordre public’ since public policy is for books to eventually enter the public domain a set period of time from the author’s death.

It would be churlish to point out that using actuarial tools to calculate the real time worth of possible sales in 70 years after’s one death is not actually an inventive for anyone to write anything. It would be insensitive to point out that regardless of Otto’s reasons for whatever authorship contribution he actually had, Anne Frank was not writing to publish at all.

For more on the difference between names and contents, what names are called and what works of literature may be called, it is worth considering that the white knight in Lewis Carroll’s chess novel Through the Looking Glass parodies a poem by Wordsworth and anticipates Wittgenstein in a song whose name is called Haddocks’ Eyes, but whose name is The Aged Aged Man. The song itself is called Ways and Means and is A-sitting on a Gate.

Categories: Copyright, Fair Use, famous marks, Intellectual Property, trademark, Uncategorized, זכות יוצרים, סימן מסחר, סימני מסחר, קניין רוחני, קנין רוחני

4 replies

  1. I agree that the title of a book as a trademark should not defeat the expiration of whatever copyright there is in the book. If the author or co-author of a book, or his/her estate, registers the title of the book as a trademark, this should and would not prevent anyone from selling the book by that title after its copyright has expired. A trademark identifies the seller of the article and if someone wants to sell the book, the same could include a disclaimer that states that the seller has no business or other relation to the author, co-author or his/her estate. George H. Spencer

  2. Dr. Factor:

    I appreciate, understand, and am sympathetic with the goal of keeping the Diary out of the public domain. However, changing the identity of the author, especially of a work acknowledged to be written by the murdered Ann Frank, is, in the US, an exercise in futility. The work will enter the public domain and no alteration in authorship can change that fact. (An interesting bit of trivia is that the great Mark Twain wrote his autobiography because he thought, incorrectly, that by adding autobiographical material to his existing works he was extending the copyright term to those works. He did not live to test the theory because he finished in 2009 and died in 2010.)

    Additionally, under US law, the title to a work of authorship cannot be a trademark because it is a one-off, a single work.

    • Philip, I agree with you that copyright for the title and changing or adding authors are both problematic. However, I don’t know what would have happened had these cases been filed in the US. Disney seems to have been remarkably good at getting copyright term extended, and at having various characters that were copyright protected, used as designs and then recognized as trademarks.

      I recently say two films (movies). One, Skyfall, is a James Bond movie in the best UK film tradition. There were references to earlier films and some nomenclature that could be tracked back to Ian Fleming, but the plot and title weren’t based on any of the books. I also saw a version of Alice in Wonderland wherein Alice is nearly 20. The film had some of the dark aspects often missing from Alice movies, and had elements traceable to both Wonderland and Through the Looking Glass, and, indeed, some aspects from lesser known Carol (Dodgson) works, like Sylvia and Bruno. A hell of a lot of it had nothing to do with Carol. Now Anne Frank’s diary has been the basis of a stage play, a TV dramatization and an Oscar winning film. Any such visual interpretation, now matter how rigorously researched and based on the book, has elements of fiction. The actors will not look exactly like the original people, the clothing and props may be time period but not authentic, and there will be a least a selection of what to show and what to edit out which is editing or censoring, depending on one’s perspective. The producer of a dramatization may concentrate on the universal messages or on the Jewish aspects, or on generation gaps and adolescence. It is fair to say that with the best will in the world the end result would not be what Anne would have done. Now that copyright has lapsed, anyone can do anything with the text. It is in the public domain. I am not sure that this is a healthy state of affairs, but I enjoyed the BBC’s Sherlock series and am aware that it is not a fair representation of Arthur Conan Doyle’s work. I just hope that Anne reworked will be clearly that. I have some sympathy with the Foundation (Fond), but am not sure that anything can fairly be done. Clearly the one-size fits all approach to copyright and patents is not optimal. I think it is, however, better than the alternatives.

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