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In general, the title of a single creative work, such as a book or DVD, is not considered a trademark and is therefore not eligible for registration. This is because a title describes the work itself rather than serving as an identifier of the publisher or creator.
According to Trademark Act Sections 1, 2, and 45 (15 U.S.C. §§ 1051, 1052, and 1127) and In re Cooper, 254 F.2d 611, 117 USPQ 396, 400 (CCPA 1958), single work titles lack the function of a trademark and do not inherently indicate the source of the product.
The reasoning behind this policy is straightforward
As the Federal Circuit explained in Herbko Int’l Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375 (Fed. Cir. 2002):
“At the point that copyright protection ends, others have the right to use the underlying work, and they must also have the right to call it by its name.”
This rule applies broadly to books, movies, DVDs, and other single creative works, whether in printed, recorded, or electronic form.
For example, a theatrical performance is considered a single creative work because the content remains largely unchanged from performance to performance (In re Posthuma, 45 USPQ2d at 2014; TMEP § 1202.08(a) (2019)).
However, certain live performances, TV shows, and educational seminars are not considered single works because their content evolves over time (TMEP § 1202.08(b)).
While a single work title is not eligible for registration, a series title can be trademarked. Titles of Book or Media Series if a title represents a series of works rather than a single work, it can function as a trademark.
For example, series titles such as:
In such cases, the title serves as an identifier of the source rather than simply describing an
individual work.
As stated in In re Cooper, 254 F.2d 611, 117 USPQ 396, 400 (CCPA 1958):
“The name for a series, at least while it is still being published, has a trademark function in
indicating that each book of the series comes from the same source as the others. The name of
the series is not descriptive of any one book and each book has its individual name or title.”
A series title is comparable to the title of a magazine or newspaper, which can also function as
a trademark.
In certain cases, courts have protected the title of a single work if it has acquired secondary meaning—meaning that the title has become widely recognized as an identifier of the source rather than just the name of the work.
Overcoming a Trademark Refusal for a Single-Work Title Under Section 2(e)(1) of the Lanham Act, a trademark application can be refused if the title is:
1. Merely descriptive
2. Deceptively misdescriptive
However, this descriptiveness refusal can be overcome under Section 2(f) if the applicant proves the title has acquired distinctiveness.
To prove distinctiveness, the applicant must demonstrate:
• Substantially exclusive and continuous use of the title in commerce. (In re Owens Corning Fiberglas Corp., 774 F.2d 1116, 227 USPQ 417, 424 (Fed. Cir. 1985)).
• That the public recognizes the title as identifying the source rather than the product itself. (Steelbuilding.com, 415 F.3d 1293, 75 USPQ2d 1420, 1422 (Fed. Cir. 2005)).
Once a title has acquired distinctiveness, it may be eligible for trademark registration—even if it originally referred to a single work.
• A single-work title (book, DVD, movie) is generally not eligible for trademark protection.
• A series title can function as a trademark and may be registered.
• In some cases, if a single-work title acquires distinctiveness, it may become eligible for registration under Section 2(f).
Understanding the nuances of genericness, descriptiveness, and distinctiveness in trademark law is essential for securing strong intellectual property rights.
I have helped countless small and medium-sized businesses navigate these challenges to protect their trademarks, copyrights, and intellectual property rights in the U.S. and internationally. I’d love to help you secure your brand before someone else does.
