Tuesday, August 23, 2011

Don't Mess With Texas Trademarks


Christie Craig has a book out called Don't Mess With TexasTexas's Department of Transportation believes she is, in fact, messing with them.  They've filed suit on the grounds that as they've trademarked that motto to protect their right to be the exclusive purveyor of "Don't Mess With Texas" souvenir items, Craig's book violates that trademark.

I've got Henry, my intellectual property attorney (and first husband) here, so I've put it to him:  Should TxDOT prevail?  His answer:  No.  Okay, but why?

Henry: The phrase "Don't Mess With Texas" is so widely used, the trademark should be invalidated.

Me:  But according to the spokeswoman for TxDOT, they've already won a lawsuit in which they asserted their exclusive right to the "Don't Mess With Texas" motto.  Here's an article about the origins of the motto as an "anti-litter" campaign dating back to the 1980s.

Henry:  Nobody in her right mind would conclude that a steamy romance novel with that title was supplied by the TxDOT, so there's little chance the state can prevail on the confusion argument, which leaves dilution.

Me:  How does the dilution argument work in this case?

Henry:  Basically what TxDOT has to argue is that this used to be a good anti-litter motto but it's losing that thrust, so to speak, so the state is trying to get people to stop misusing it.

Me:  How does having a romance novel called Don't Mess With Texas dilute the anti-littering campaign, or is TxDOT really concerned about the tchotchkes it sells in stores like Barnes & Noble, where Craig's novel is also for sale?

Henry:  Well, the trademark only applies to items for sale, not the anti-littering signs by the roadside.

Me:  Ah, okay.  So you be the judge:  Can a steamy romance novel do sufficient damage to the mark for TxDOT to prevail?

Henry:  One argument would be that the genie's already out of the bottle -- there's no reputation left to dilute.

Me:  But I thought Texas wanted to limit the items that can bear the motto, such as T-shirts and key-chains, so that having an unauthorized book with that title on sale violates the mark?

Henry:  Which leads me to think that the mark is invalid -- as there can be no confusion about TxDOT writing romance novels, and too many people use the phrase "Don't Mess With Texas" without meaning anything to do with littering, there are no legal grounds left.

Me:  See, I can understand TxDOT's efforts to make sure only their T-shirts and key-chains say "Don't Mess With Texas," so I'd be inclined to rule in their favor in cases where they are trying to block the sale of unauthorized "Don't Mess With Texas" souvenirs.  A book, I figure, is different.

Henry:  TxDOT's trademark registrations seems to cover a lot of printed paper materials, including pamphlets but not novels.  You could argue that books and pamphlets are too similar for comfort, or you could argue that associating the slogan with steamy sex in any concept tarnishes and dilutes it.

Me:  Can the court hold that the "Don't Mess With Texas" trademark be invalidated solely as to fiction?

Henry:  Because you're arguing about similar but not identical goods, they wouldn't be that specific, they'd just say that the goods are not similar enough for TxDOT's argument to work.  Even if TxDOT's trademark registrations for printed matter were broad enough to include novels, I've never seen that sort of carve-out in this country, but back in England the registrar was willing to carve out exceptions.  You've heard of Penguin paperbacks?

Me:  Of course.

Henry:  That's a trademark covering all books -- except for books about penguins.

Me:  But it's unlikely that an American court would do that in this case.  If TxDOT prevailed in the case of Christie Craig's book, I assume Hachette would have to republish the book with a new title -- but only those copies to be sold in Texas, right?

Henry:  As it's a federal registration, the prohibition would cover all book published in the U.S.

Me:  Wow.  Okay, and if Hachette and Craig prevail, what's the likely ruling then?

Henry:  The court would likely hold that the nature of the goods is different enough that there's no confusion or dilution.

Me:  Which certainly seems the least disruptive ruling.  One last question:  How was Craig to know that this was a trademarked phrase?

Henry:  She could have checked the federal trademark database -- if the question had ever occurred to her.

Me:  But as so many of us know "Don't Mess With Texas" as generic braggadocio, why would it have occurred to her even to look?

Henry:  Clearly it didn't.

Me:  So is there anything writers can do to protect themselves prophylactically?  I'm thinking also of the lawsuit Kathryn Stockett had to face when her brother's black maid, Ablene Cooper, sued on the grounds that Stockett's character, Aibileen, in The Help was based on her.  Stockett gave Cooper a copy of the book in 2009 but Cooper didn't read it until after the one-year statute of limitations had run, so her lawsuit has been dismissed.  Maybe Stockett thought the standard "This is a work of fiction and any resemblance between the characters and persons living or dead is purely coincidental" disclaimer protected her.  (And it might have; the case obviously never got to the merits so we're unlikely to know.)  I realize you can't prevent all lawsuits -- and maybe Christie Craig is happy with the amount of publicity she's getting for her book -- but can you give writers any advice in these situations?

Henry:  With respect to titles, writers can search to make sure the title they want isn't trademarked.  Go to the index page for trademarks and start a search.  Of course, there are also state trademark registrations, but doing all 50 searches is a much more complicated process.

Me(groan)  No, that's okay, Henry.  I think we've give people enough to think about already.

Edited to addThe judge denied TxDOT's request for an injunctive relief in the form of an order that Hachette recall, destroy and retitle Craig's book.  The court held that TxDOT's trademark registration didn't extend to books -- just like Henry said.  (That's why he's my intellectual property attorney -- and why I won't allow him to retire.)

Wednesday, August 17, 2011

TBR Challenge -- Neuroscience, Philosophy & Ice Cream in BDSM Erotica

This month's TBR Challenge is, and I quote, "Steamy reads (Erotic romance, erotica, something spicy!)"

However, this post will itself be spice-free.  Because my one and two-thirds TBR books interest me in non-sexual ways.  And because I don't want anyone to feel uncomfortable.

Okay, let's get the two-thirds out of the way.  An online friend highly recommended an anthology of novellas about police officers.  I had to stop reading the first story about an undercover cop falling for the bookkeeper for the mob, when it used expressions like, "He made me an offer I couldn't refuse" and it wasn't talking about sex.  The Godfather clich├ęs were as stupid as the conceit that the cop could be losing his mind about this woman while he's undercover and at risk of getting them both killed.  I dunno -- maybe a better writer could have made the situation work, but I found it insultingly silly.  And not sexy.

I abandoned the mob and tried the second story about a cop going undercover as a male stripper to catch the Black Widow, a serial killer preying on strippers (a set-up Linda Howard herself couldn't rescue).  This story was better written, although the notion that he'd actually have sex with a woman he'd thought was a killer just ten minutes earlier is just crazy.  I managed to finish it, but I'll never get that hour back.

I had no stomach even to start the third story, so maybe it's great.  I'll come back and edit this post if it is.  Oh, and you noticed I haven't told you the name of the book or the novellas' authors?  The names have been omitted to protect the guilty...and the innocent, namely my friend who recommended this book in good faith.

Vanilla
But to satisfy the TBR Challenge rules, I had to read a book I could name and discuss, so I picked an ebook I had in my TBR, Fortune by Annabel Joseph.  Ms. Joseph writes BDSM erotica, and her early books (Mercy, Comfort Object) are pretty hardcore stories with the romance -- and yes, there's a romance in each one -- playing a supporting role.  But her recent books, Caressa's Knees, Deep in the Woods, and Fortune (the last two are connected), have focused more on the relationship between the protagonists, with the kinky sex being one aspect of that relationship.  (I'm pleased to see from her website that she's writing non-BDSM romances as well.)

In Fortune, Kat is a second-generation Russian-American who haunts dance clubs for one-night hook-ups with college-aged guys.  She'll also sleep with the DJs, and sometimes with the bartender, but never with the bouncer.  As almost all of Kat's life is shadowed with bone-deep ennui, her reluctance to sleep with a bouncer seems odd.

One of the bouncers (she thinks) catches her eye -- Ryan, who's actually a neurosurgeon (stop rolling your eyes) helping to train the bouncers in something or other.  (Really -- don't dwell on this.  It's absurd, but Joseph is so assured in her writing that I just went with it.  Ryan's a complicated guy, so of course he's at that club hanging out with the bouncers when Kat notices him.)

He chats her up but she's not interested.  Or, to be more precise, she is interested in him, but she's more interested in being disinterested in stuff that might make her happy.  She's deeply invested in her weltschmerz and she's not letting him mess with that.

Which raises some fascinating questions about paternalism and self-determination.  If someone offered to help you get more organized, or lose weight, or eat better, would you be interested?  What if the methods he was going to use were distinctly paternalistic, ordering for you at a restaurant for example, so while they worked, they also took away your casual self-determination?

I say "casual self-determination" because as David Eagleman shows in his book, Incognito: The Secret Lives of the Brain, there's no monolithic entity controling our preferences and ultimate choices.  He likens it more to a parliament, with majority members and the "back benchers," -- you want the ice cream but you also don't want the ice cream, so the factions fight over whether to have the ice cream.  We all know what that feels like.

Non-vanilla
In Fortune, Kat wants Ryan (who she learns is a Dominant in the BDSM lifestyle) but she also doesn't want him.  He scares her not because he'll harm her physically, but because he'll make her feel wanting, or even love.  He senses her ambivalence and just decides to override her stated objections because he can tell what she "really wants."

Yeah, don't try that at home, folks.  But it's fiction, and if we held all romances to the standard that "real life doesn't work that way," we'd have nothing to read.

When Kat pulls away, Ryan lets her.  The decision, ultimately, is hers and eventually her desire to be with him wins over the weltschmerz.  She moves in with him for a month, never intending it be permanent.  There's a nice mix of vanilla and non-vanilla sex, and it's more on the "we'll be serious about the lifestyle part of the time and just be a couple the rest of the time" end of the kinkiness spectrum.  (The other end of the kinky spectrum is better represented in Mercy or Comfort Object.)

Unfortunately, the intriguing conflicts of their relationship are all much more vivid and engaging than the sex.  (Just because leather is involved doesn't mean the sex is intense.  It's intense when it's blowing someone's mind.)  As a result, the final quarter of the book drags in places.   I can't wait to see what Joseph's writing is like when she doesn't have to meet the requirement of X number of sex scenes with Y yards of rope and Z leather objects.

Overall, this is a wonderful romance between a very complicated and sad heroine and a resourceful hero.

One final thought:  I like BDSM heroes because they're very obviously thinking a lot about what's in the heroine's head.  The Dominant hero stuff is okay (I don't like the humiliation and name calling, but if both parties find it a turn-on, that's great for them) because really, how different is this from a cowboy romance or a billionaire sheik romance?  He's got power, she's got something he wants (smokin' hot bod, or perhaps a secret baby), they work out a way for both sides to be happy with the arrangement.  Usually that involves taming the wild man -- getting the hero to behave in a more civilized and sensitive manner.

But in BDSM novels, the hero's already "civilized" in that he knows what he likes to do, he knows women who want to be on the receiving end, and he's happy to accommodate them.  And I mean that word seriously:  the hero either knows at the beginning of a BDSM erotic romance how to accommodate the heroine (so the character arc is hers) or he doesn't yet, and he'll have to figure it out by the end.  Even in a story with wildly unequal power status, there's a vital negotiation going on.  Both parties have a vote, and both parties have to vote yes for the relationship to work.  (Joseph looks at the dynamic of a failed BDSM relationship, where the man removed the woman's right to veto the relationship, in Deep in the Woods.  She leaves no doubt about how wrong that situation is, and how it's vital for the submissive always to retain the power to get out.)

Clearly, these books aren't for everybody.  It's a shame, actually, because Annabel Joseph's writing and characterizations are very fine and she raises some philosophical questions about passivity and paternalism that I wrestled with in a paper I wrote for grad school 30+ years ago.  (I left out the sex, of course.)

Sunday, August 14, 2011

Food for Thought

Grace Burrowes's The Heir is a litmus test book -- people either love it or hate it.  Not many people online have read it and said, "It was just okay.  I didn't love it but I didn't hate it."

Most of the chatter has been about the historical inaccuracies.  It's true -- the book is studded with them.  You could make a drinking game out of it:  take a drink every time she has a character mention something that didn't exist in early 19th century England, or do something they just didn't do, etc.

Actually, I enjoyed the first two-thirds of the book because Burrowes has a pleasant voice.  Her characters didn't sound like refugees from the twenty-first century, even when they were spouting nonsense.  I was expecting to be much more enthusiastic, but she lost me with the intrigue that has to be resolved at the end for the protagonists to marry.  It wasn't very compelling, particularly as one would imagine a duke could marshal enough solicitors and cronies in the House of Lords to get the heroine's situation sorted out.  Oh, well.  Whatever.  I'm hoping Burrowes will get better, building on her strengths and diminishing her weaknesses.

Among the anachronisms -- the implausible running of the household, the multi-talented sole horse in the stables, the odd use of ducal honorifics -- I was most fascinated by all the American food the characters consumed.  Lemonade, for example.  There's supposedly a heat wave in London bad enough that everyone keeps drinking lemonade.  Two things are immediately clear.  First, Ms. Burrowes is imagining the American style of lemonade, which is made with lemon juice, sugar and water.  Second, she's never made it herself.

Supposedly the hero is fond of lemonade with a lot of sugar.  But if you just dump a lot of sugar crystals into some lemonade, the sugar doesn't dissolve.  The way around that is to make a simple syrup of equal parts water and sugar, heat it just enough for the sugar to dissolve then cool it down, and sweeten the lemon juice and water with that.  Anyone who's made lemonade in any quantity would know that.

Burrowes's heroine, Anna, comments on the prohibitive cost of sugar in the early 19th century, and Wiki bears that out.  But where were the lemons coming from in mid-August?  Someone's orangery, presumably, but whose?  The hero's family estate might have a source of lemons -- but that many?  The characters were chugging lemonade like it was water from a well.  (Except for the brother who insisted on drinking "cold tea."  I mentioned that to Brit Hub 2.1, and he said, "Oh, my gawd!"  Cold tea is anathema to the British.  And don't even get me started on how it's impossible to find iced coffee -- even today and even during a British heat wave.)

Next up: cookies.  I thought we all knew the Brits eat "biscuits."  The word "cookie" comes from the Dutch "koekje" or "little cake" and entered the English language here in North America.  The British know the word, obviously, but the only comestibles known as "cookies" in the UK are things identified as American, like "Maryland cookies."  (I've never met a Maryland Cookie, here or over there, but Wiki says it, so it must be true.)  Come to find out, the actual foodstuff has been around for a long time (here's the Wiki article), including throughout Europe.  It just wouldn't have been called a "cookie" in early 19th century England.

Finally, muffins.  I suspect that Burrowes was imagining our sort of muffins -- cup-shaped with a rounded top -- but actually the "English muffin" sort of muffin -- flat and dusted with cornmeal -- was eaten in 19th century England.  The "muffin man" shows up in Austen's Persuasion, and muffins are consumed by characters in Dickens' Nicholas Nickleby.  Here's the Wiki article on the flat, intended to be toasted, sort of muffin.

The real problem with such gustatory anachronisms isn't that they ruin the book -- that's still a matter of taste (heh heh) for the reader -- but that they take one, at least someone food-oriented like me, out of the story.  Every time Burrowes had her characters quaff some lemonade or eat a cookie, I would think about the history of food more than the characters.

Here's my real question, though: where's the editor in all this?  Aren't we all supposed to be steeped in the basic elements of the Regency romance?  Wouldn't an editor have circled the first instance of the word "lemonade" or "cookie" and scribbled in the margin, "Are you sure?"  With global search-and-replace, it would have been so easy to change that to cider.  Or tea -- regular hot tea, which yes, the Brits drink in ALL weather.  (Or, as it's known in my transatlantic household, "the sweet elixir of life."  Someone here is an addict.)

Tuesday, August 2, 2011

The Help and Historical Accuracy

Halfway through reading The Help by Kathryn Stockett, I thought about the perennial arguments in Romlandia about historical accuracy.

The Help is a story about domestic workers -- maids -- and the women they work for.  If it had been set in Edwardian England, it would be Upstairs Downstairs or Downton Abbey.  But The Help starts in Jackson, Mississippi in 1962.

Governor's Residence, Jackson, Mississippi

That's in my lifetime.  I even knew that Shake 'n Bake wasn't around in 1963, a fact Stockett acknowledges at the very end of the book.

The thing is, I was growing up in upstate New York during this time.  The Help is about black domestic workers in southern middle class households during the last throes of the civil rights era.  I may have known about Shake 'n Bake, a national product, but that was pretty much my extent of ability to judge whether Stockett got it "right."  And as she was born in 1969, Stockett writing about the lives of black and white women in the early 60s would be like me writing about World War II, a feat only slightly less difficult than writing about World War I.  (At least my parents lived through WWII and told me about their experiences.)

Which is why the most fascinating bit of The Help, for me, was the section after the acknowledgements, which come at the end of the body of the novel.  Stockett calls it "Too Little, Too Late," and in it she writes of her experience with her family's black maid, Demetrie.  Then Stockett quotes Howell Raines's Pulitzer Prize-winning article, "Grady's Gift":
There is no trickier subject for a writer from the South than that of affection between a black person and a white one in the unequal world of segregation.  For the dishonesty upon which a society is founded makes every emotion suspect, makes it impossible to know whether what flowed between two people was honest feeling or pity or pragmatism.

Stockett then writes, "I read that and I thought, How did he find a way to put it into such concise words?   Here was the same slippery issue I'd been struggling with and couldn't catch in my hands, like a wet fish."  Later, she writes:
What I am sure about is this: I don't presume to think that I know what it really felt like to be a black woman in Mississippi, especially in the 1960s.  I don't think it is something any white woman on the other end of a black woman's paycheck could ever truly understand.  But trying to understand is vital to our humanity.

"Too Little, Too Late" answered all my questions about The Help, a book I inhaled in less than 24 hours.  (I've even asked Ross to get The Help out of the library as an audiobook -- I'm pretty sure I wasn't doing the regional accents in the book justice.)  I enjoyed it tremendously and am very thankful that I read it before seeing the movie, which the trailer would suggest is trying to be "the feel good movie of the year."  The book isn't quite that unalloyed to be called "feel good" -- and I can imagine it's been criticized on both ends of that spectrum.  Some might say its ending is a bit of a downer (happy, yes, but happy enough?) while others might kvetch that most of the black women are a bit saintlike while most of the white women are just plain nasty as well as racist.

I noted those things in the same spirit as the Shake 'n Bake -- I can see why she presents her characters as she does, why the ending is as it is, and why she needed to have Kraft advertising Shake 'n Bake on TV a couple years before they did.

It's the things I didn't know, the things that a white girl growing up in the integrated Northeast had no way of knowing, that stunned me.  The Help -- like all engrossing books -- put me in a foreign land, showed me believable characters, allowed me to observe their interactions and empathize for their hurts, and become deeply concerned that everything turn out all right for them.  If it had been set during the Civil War -- if it had been The Wind Done Gone about the slaves at Tara -- then I'd have accepted the characterizations as accurate, partly because its author Alice Randall is black and partly because what do I know of America in the 1860s.  But a book set in the US of the 1960s invites a false sense of certainty on my part.  I was "there" so I should "know."

Well, I wasn't there.  The South of my youth might as well have been Almack's or the Battle of Waterloo for all I would know.  I trusted Stockett to get it right.  She's from Mississippi, her family had a black maid who cared for the children, and even if Stockett was twenty years too young to have experienced the period of The Help, she knows a lot more about it than I ever will.

So I trusted her, and I trusted The Help to help me get a sense of what it was like to live in that time.