# Name Resembles Established Franchise Character- Use Anyway?



## Mindfire (Aug 10, 2012)

So the name I intend to use for a deity in my WIP, Hakadosh, bears a syllabic similarity to the name of Akatosh, from Elder Scrolls. The two gods are absolutely nothing alike, so resemblance is not a factor here. Hakadosh also has no common etymology with Akatosh that I know of. Should I go ahead and use the name or change it?

Also, what's a general rule for when one of your characters' names ends up sounding like Character X from a reasonably popular franchise?


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## T.Allen.Smith (Aug 10, 2012)

If I were you I'd use it without concern or remorse. The exception would be if the characters were similar but otherwise it's fine.

I have a character named Hammond, so does Sanderson. That bothered me for about 5 minutes until I realize that it's just a name. There's loads of differences that make the one similarity irrelevant.


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## Benjamin Clayborne (Aug 10, 2012)

I think it's safe to say that Akatosh has not made it into any kind of wider recognition; I've never heard the name before, even though I'm pretty tuned in to geek and gamer culture. (I haven't played an Elder Scrolls game since, um, forever.)

Particularly iconic names should be avoided, but something like this, I wouldn't worry. Now, if it bothers _you_ to have a similarly-named god, then by all means, change it.


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## SlimShady (Aug 11, 2012)

This has happened to me several times.  I honestly don't care if my character has the same name with another character, because frankly it's bound to happen.  For example, one of my main characters is named Loren.  Rings a bell with Loren Silvercloak from The Fionavar Tapestry.  Both are vastly different characters with wildly differing morals.  Another one of my characters is Robert Hothor, who shares his first name with Robert Baratheon in A Song of Ice and Fire.  The two characters are, also, wildly different.  

  There is no point in stressing over this, unless it actually bothers you.


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## T.Allen.Smith (Aug 11, 2012)

Benjamin Clayborne said:
			
		

> Particularly iconic names should be avoided...



Agreed. Naming a character Gandalf would raise eyebrows & turn people off.


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## Mindfire (Aug 11, 2012)

T.Allen.Smith said:


> Agreed. Naming a character Gandalf would raise eyebrows & turn people off.



Unless it's a parody I guess. (My work is not.)


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## Ravana (Aug 11, 2012)

T.Allen.Smith said:


> Agreed. Naming a character Gandalf would raise eyebrows & turn people off.



Uh, does that mean I shouldn't use my character "Grandolph the Off-White" any more? Darn… and I worked so hard on naming him.…


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## ThinkerX (Aug 11, 2012)

Another bit here, though, is there are a *lot* of real common names out there.


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## FireBird (Aug 11, 2012)

Having played the past three Elder Scrolls games and immediately knowing who Akatosh is, I can honestly say that after reading the name 'Hakadosh' I would think for a second that it sounds similar then I would dismiss it. However, if I read further and your book had nine gods and one of them was a man before becoming a deity, I would get a bit suspicious. :tongue:


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## Anders Ã„mting (Aug 11, 2012)

I think you could probably get away with Hakadosh - I mean it's not likely Bethesda Studios is going to sue you over it - but I would personally only use it if I couldn't think of anything better. 



T.Allen.Smith said:


> Agreed. Naming a character Gandalf would raise eyebrows & turn people off.



Actually, Gandalf is a name from Norse mythology - one of the dwarves, I believe - so it's not like Tolkien came up with that on his own, and it should be public domain.


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## T.Allen.Smith (Aug 11, 2012)

Anders Ã„mting said:
			
		

> I think you could probably get away with Hakadosh - I mean it's not likely Bethesda Studios is going to sue you over it - but I would personally only use it if I couldn't think of anything better.
> 
> Actually, Gandalf is a name from Norse mythology - one of the dwarves, I believe - so it's not like Tolkien came up with that on his own, and it should be public domain.



It hardly matters if the name is public domain. 99.5% of the fantasy readers will associate the name Gandalf with LoTR to the detriment of any non-Tolkein author. I believe the point still stands concerning the use of iconic names, regardless of their origins.


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## Anders Ã„mting (Aug 11, 2012)

T.Allen.Smith said:


> It hardly matters if the name is public domain. 99.5% of the fantasy readers will associate the name Gandalf with LoTR to the detriment of any non-Tolkein author. I believe the point still stands concerning the use of iconic names, regardless of their origins.



Oh, I agree. Just pointing it out as a fun fact.


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## Steerpike (Aug 11, 2012)

A name usually isn't protected by copyright. It can be protected by trademark law, however, and if one is it doesn't matter how old it is or what the origin is, the trademark owner still has the rights in it. 

Not saying that is true of Gandalf, just pointing out that a centuries old name could still be protected. You cannot just assume "public domain" in the sense that it is free from all ownership.


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## Anders Ã„mting (Aug 11, 2012)

Steerpike said:


> A name usually isn't protected by copyright. It can be protected by trademark law, however, and if one is it doesn't matter how old it is or what the origin is, the trademark owner still has the rights in it.
> 
> Not saying that is true of Gandalf, just pointing out that a centuries old name could still be protected. You cannot just assume "public domain" in the sense that it is free from all ownership.



You can if you are talking about mythology. It's not like you can trademark names like "Odin" or "Zeus."


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## Steerpike (Aug 11, 2012)

Yes, you can.


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## morfiction (Aug 11, 2012)

Oh I should have asked my question here. 

I have a character named "Bleach" and there's a manga out there called "Bleach." But the thing is I created this character like 15 or more years ago... I have never read the manga just saw it in stores.


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## Mindfire (Aug 11, 2012)

FireBird said:


> Having played the past three Elder Scrolls games and immediately knowing who Akatosh is, I can honestly say that after reading the name 'Hakadosh' I would think for a second that it sounds similar then I would dismiss it. However, if I read further and your book had nine gods and one of them was a man before becoming a deity, I would get a bit suspicious. :tongue:



Lol, no nothing like that. I only really have one god, but he goes by several different names. 



Anders Ã„mting said:


> I think you could probably get away with Hakadosh - I mean it's not likely Bethesda Studios is going to sue you over it - but I would personally only use it if I couldn't think of anything better.



Speaking of which, I've come up with a name I like just as much: Akalesh. It has a similar rhythm and sound to it and while it _looks_ more like Akatosh, it _sounds_ quite different I think. What do you think of it, Anders?


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## Mindfire (Aug 11, 2012)

Steerpike said:


> Yes, you can.



I can trademark Odin? How does that work exactly? Shouldn't there be some things that are un-trademarkable? Suppose I trademark fish? Does every fisherman have to give me a cut of their profits now?


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## SlimShady (Aug 11, 2012)

morfiction said:


> Oh I should have asked my question here.
> 
> I have a character named "Bleach" and there's a manga out there called "Bleach." But the thing is I created this character like 15 or more years ago... I have never read the manga just saw it in stores.


 
  To be honest, I wouldn't care if the character is minor and his name is bleach.  However, a major character named Bleach would just be too jarring for me as a reader.  Every time I would read bleach, I'd think about doing some laundry.  Bleach as a name is just to silly for me.  (Never read the magna BTW.)


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## Steerpike (Aug 11, 2012)

Mindfire said:


> I can trademark Odin? How does that work exactly? Shouldn't there be some things that are un-trademarkable? Suppose I trademark fish? Does every fisherman have to give me a cut of their profits now?



You don't understand how trademarks work, Mindfire.

The only thing you can't trademark is a word that is generic for whatever goods or services you want to trademark it for. So getting a trademark for "fish" to sell fish is out. If you start a car company called Fish, you can get a trademark on it. Even if you could get a trademark on "fish" covering actual fish, I'm not sure what makes you think a fisherman would have to give you a cut of his profits.

A perfect example of a trademark on a mythological figures is Thor. Marvel comics, as you might imagine, has a trademark covering that. In fact, it looks like they have numerous trademarks on that name going back to the early 1970s. If you make a superhero named Thor, you've got a potential problem on your hands, mythological figure or not. Marvel doesn't have qualms about going after people.


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## Mindfire (Aug 11, 2012)

Steerpike said:


> You don't understand how trademarks work, Mindfire.
> 
> The only thing you can't trademark is a word that is generic for whatever goods or services you want to trademark it for. So getting a trademark for "fish" to sell fish is out. If you start a car company called Fish, you can get a trademark on it. Even if you could get a trademark on "fish" covering actual fish, I'm not sure what makes you think a fisherman would have to give you a cut of his profits.
> 
> A perfect example of a trademark on a mythological figures is Thor. Marvel comics, as you might imagine, has a trademark covering that. In fact, it looks like they have numerous trademarks on that name going back to the early 1970s. If you make a superhero named Thor, you've got a potential problem on your hands, mythological figure or not. Marvel doesn't have qualms about going after people.



But suppose I make a comic book/film/animated series about Norse mythology? Would I just not be allowed to include Thor alongside Odin, Baldur, Freya, etc.? Or suppose I'm writing a fantasy book about the Norse people? Are they not allowed to talk to or interact with Thor at all?


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## Steerpike (Aug 11, 2012)

Mindfire said:


> But suppose I make a comic book/film/animated series about Norse mythology? Would I just not be allowed to include Thor alongside Odin, Baldur, Freya, etc.? Or suppose I'm writing a fantasy book about the Norse people? Are they not allowed to talk to or interact with Thor at all?



Technically, it all comes down to the likelihood of consumer confusion. In practice, trademark owners tend to get a bit more latitude than that. If your Norse pantheon were superheroes, I could see Marvel coming after you and I think they'd have a good chance of forcing you to stop using Thor. If you were illustrating Norse mythology, and not writing a comic book about a superhero, I suspect it would be tough for Marvel unless your character looked a lot like their Thor (and then Copyright comes back in). 

If you're just writing a regular fantasy book where Thor happens to be a character, I don't think Marvel would have much of a case, and it is unlikely you'd be using "Thor" in a trademark sense (i.e. in a way that would cause a consumer to be confused).

Also, I suppose I should add that if Marvel could make the case that their "Thor" trademark was famous, then they wouldn't have to show confusion. There are other ways they could try to come after you.

If Marvel did decide to sue you, it would cost you a bundle even if you beat them.


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## Mindfire (Aug 11, 2012)

Ah, but what's the likelihood of something like that happening? How probable is it that Marvel would come after a guy like me for writing a fantasy book on Norse mythology? Hopefully not very.


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## Steerpike (Aug 11, 2012)

Mindfire said:


> Ah, but what's the likelihood of something like that happening? How probable is it that Marvel would come after a guy like me for writing a fantasy book on Norse mythology? Hopefully not very.



Slim to none, would be my guess. They've really got no reason to come after you for that. If you were doing something directly within their own sphere of products, like writing a comic book featuring a superhero named Thor, or selling a toy action figure Thor (even if it was supposed to be part of a line of Norse god action figures and not a superhero), I think you'd run a decent risk of them coming after you and winning.


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## Mindfire (Aug 11, 2012)

Steerpike said:


> Slim to none, would be my guess. They've really got no reason to come after you for that. If you were doing something directly within their own sphere of products, like writing a comic book featuring a superhero named Thor, or selling a toy action figure Thor (even if it was supposed to be part of a line of Norse god action figures and not a superhero), I think you'd run a decent risk of them coming after you and winning.



Gotcha. Although judging by the number of Marvel superhero knockoff toys...


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## Steerpike (Aug 11, 2012)

Mindfire said:


> Gotcha. Although judging by the number of Marvel superhero knockoff toys...



As long as they aren't using trademarked terms...

I represented a comic book/toy producer for a few years at one firm I was at, and we had good success going after knockoffs or infringing items.


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## Caged Maiden (Aug 11, 2012)

When we use our own ancient cultures, it becomes tricky.  I've researched Norse names and Anglo-Saxon names, and many are hard to pronounce for people who have not dealt with their pronunciation much.  In fact, I just did a bunch of Italian names for my WIP and I think those too will give readers a fair amount of trouble, so I tried to stick with just the ones that were easy to pronounce.  Well, that leaves us with a limited number of names in these cultures, and unfortunately, many of them have been used before.  So, use the names you think best suit your characters, and try to make sure they can't be confused.  

I Just had to make a decision about a character (with a Norse name), and I decided to go with Radulfr, shortened to Rad.  Yeah, it drew a little smirk from my crit partner, but the alternative was to go with Randulfr, shortened to Rand, so I decided, even if Rad isn't the best name, at least it's better than an already popular name.  Do I like it as much?  No.  But it's a support character and I can always change it later if I feel inclined to do so... what's one letter?


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## Ravana (Aug 12, 2012)

In fact, both Marvel and DC make use of entire historical pantheons–Marvel to a greater extent than DC–including using some of the same names even in cases where they might otherwise have agreed to divvy up the field ("You take the Greek names, we'll take the Roman ones"). So it would be somewhat hypocritical for them to go after someone just for using a name. Likenesses would be more likely to cause trouble: unfortunately, Marvel had Thor grow a beard at various points, so you can't get away with simply making your Thor look like an actual Viking. 

Even the name plus well-known attributes shouldn't be too much of a problem: Thor was strong, carried a hammer called Mjolnir, was associated with weather, and so forth. Give him a red cape, blue tunic, and a winged helmet, let him fly by "throwing" his hammer, and open dimensional portals by spinning it, and you're in a completely different ballpark. 

DC, by the way, does have its own version of Thor–well, four versions, actually (or five, if you count the one who appeared in Gaiman's _Sandman_… or six if you count Thor the Thunder Dog*). The first of them appeared in 1942, fighting the _original_ Sandman, twenty years before Marvel's character appeared; the second appeared in _Batman_ in 1959, three years earlier–and a mag that can, I think, be solidly considered one of their flagship titles. Marvel got away with creating their own anyway. (Probably helped that he was a hero, not a villain. It's little things like that which can make the difference to a court.  )

Which still does not make Steerpike incorrect. Just puts the potential conflict into a slightly different context. 

-

* Sadly, I'm not kidding.


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## morfiction (Aug 12, 2012)

So I have to rename Bleach?


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## Graylorne (Aug 12, 2012)

ArenÂ´t Thor and the others members of a currently recognised religion? I can't imagine anyone claiming copyright on a God.


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## Mindfire (Aug 12, 2012)

Graylorne said:


> ArenÂ´t Thor and the others members of a currently recognised religion? I can't imagine anyone claiming copyright on a God.



Copyright no. But trademark is apparently a bit different.


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## Benjamin Clayborne (Aug 12, 2012)

Graylorne said:


> ArenÂ´t Thor and the others members of a currently recognised religion? I can't imagine anyone claiming copyright on a God.



You don't have to imagine it; as was pointed out, Marvel has had a trademark on "Thor" (with regard to superheroes) for decades. Their trademark on "THE MIGHTY THOR" (in the domain "IC 016. US 038. G & S: PUBLICATIONS, PARTICULARLY COMIC MAGAZINES AND STORIES IN ILLUSTRATED FORM. FIRST USE: 19620800. FIRST USE IN COMMERCE: 19620800") was registered in 1967, and they also got a trademark on just "THOR" for the same domain in 1972.

There are more than 283 trademarks in the USPTO database (most of them dead) that include "THOR" in them.

The _copyrights_ Marvel have with regards to Thor would involve his particular costume and characterization. Someone else could quite legally write a story about Thor, the Norse god, running around doing things, as long as it wasn't too similar to the way Marvel has done things.


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## Steerpike (Aug 12, 2012)

Most writers don't have a great understanding of the differences between trademarks and copyright. It is a good thing to know.


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