While wandering through the “young teen” fiction section of a local bookstore recently, I noticed a series of supernatural fiction books by author Rachel Hawthorne in the same section as the Stephenie Meyer Twilight books (yes, I had to mention Twilight again sometime, didn’t I?) While I haven’t read any of Hawthorne’s books, her Dark Guardian series is apparently centered around teenage girls and werewolves and teen romance so it seems to be aimed at a very similar demographic to Meyer’s books. What struck me, despite the very different cover art for the two series of books, is that if you just looked at the spines of the books on the shelves, all you can see is the titles. And the titles bore distinct similarities.
Meyer’s book series has the following titles: Twilight, New Moon, Eclipse, Breaking Dawn
Hawthorne’s Dark Guardian books are titled as follows: Moonlight, Full Moon, Dark of the Moon, Shadow of the Moon
I was wondering if this might make a good TM hypo. It brings to mind cases like the Barbie Girl song case, Rogers v Grimaldi etc where titles can be protected as TMs, but only to a point.
For infringement, is it possible a consumer (or her harried mother) could confuse Twilight with Moonlight, or Full Moon with New Moon? Could Dark of the Moon confuse consumers looking for a copy of Eclipse? And what about the placement of the books in the same section of the bookstore?
What about dilution? Could this be a case of blurring?
I know Stephenie Meyer obviously doesn’t own the words Twilight, New Moon, Eclipse, and Breaking Dawn and, even if she did, others would be entitled to use similar words to describe their own books. But I must admit that when I came upon Hawthorne’s titles in the bookstore, I did wonder if maybe they were intended as parodies of Meyer’s books and titles. At the very least, I picked up one of the books to see what it was about – so maybe initial interest confusion, anyone? Is Hawthorne engaging in any form of unfair competition or is she just engaging in free speech in choosing the titles for her books?