Thank you Urulókë for the clarification. It is in my opinion such an over reach of power that in bigger instances must stifle creativity and enterprise.

They're exercising the same rights as the Tolkien Estate; namely to control, protect, and profit from the assets they own. You might not agree with this, but it's not that complicated. As Urulókë points out, lots of this comes down to interpreting what the public perception of the name is. If this is wholly independent and unrelated to Tolkien then you have a fair chance of winning any legal battle. But let's be honest, most people using these names are playing on the Tolkien association. And trademark law has something to say about that, as it should.

@Khamûl wrote:
They're exercising the same rights as the Tolkien Estate; namely to control, protect, and profit from the assets they own. You might not agree with this, but it's not that complicated. As Urulókë points out, lots of this comes down to interpreting what the public perception of the name is. If this is wholly independent and unrelated to Tolkien then you have a fair chance of winning any legal battle. But let's be honest, most people using these names are playing on the Tolkien association. And trademark law has something to say about that, as it should.

I should have been more clear. I don't mean that nobody should have these rights. I simply mean that it should not be SZ when there is no connection to their intellectual property beyond a name. That stinks.

@onthetrail wrote:
I should have been more clear. I don't mean that nobody should have these rights. I simply mean that it should not be SZ when there is no connection to their intellectual property beyond a name. That stinks.

I believe, if I understand you correctly, that we are saying the same thing, depending on "the name".

There are lots and lots of "rivendells" and "shires" and "rings" out there in the world. There is only one possible source of "Celebrimbor" (Tolkien), so if you use that name in your business, you are infringing on SZ rights to that name.

There are lots of grey areas as well, ie "bilbo" or "gandalf" which could come from other sources, but you would be hard pressed to convince a judge or jury that you were not using that name to try and get additional business because of the association with the Tolkien named properties. If you can convince them, you are free to use the name! If you aren't willing to fight for the name, then you should probably use one that is not used in LOTR or Hobbit.

@onthetrail wrote:
I should have been more clear. I don't mean that nobody should have these rights. I simply mean that it should not be SZ when there is no connection to their intellectual property beyond a name. That stinks.

So who should own these rights?

@Khamûl wrote:

@onthetrail wrote:
I should have been more clear. I don't mean that nobody should have these rights. I simply mean that it should not be SZ when there is no connection to their intellectual property beyond a name. That stinks.

So who should own these rights?

The Tolkien Estate. If a company uses a name related to Tolkien but their business uses nothing related to the specifics connected to SZ. It seems some of these trademark applications are a little overreaching. That is my point.

@onthetrail wrote:
The Tolkien Estate. If a company uses a name related to Tolkien but their business uses nothing related to the specifics connected to SZ. It seems some of these trademark applications are a little overreaching. That is my point.

But that is precisely the rights that Tolkien sold, and are now owned by SZ!

Quoting here from A Companion to J.R.R. Tolkien, edited by Stuart Lee, chapter 35 "Film Adaptation" by Kristin Thompson, p. 520. The quote below (as cited) is quoted as being directly from the contract of the rights sale (to United Artists at the time, further sold to Saul Zaentz in the 1970s).

The sole and exclusive right in connection with the making, exhibition and exploitation of said motion picture photoplays to translate into all languages, to freely adapt, change, transpose, revise, rearrange, add to and subtract from the Work or any part thereof and the title, theme, plot, sequence, incidents and characterizations thereof, to make interpolations in and substitutions for any part or parts thereof, to make sequels to and new versions or adaptations of the Work or any part thereof, to use any part or parts of the Work or of the theme thereof or any incidents, characters, character names, scenes, sequences or characterizations therein contained in conjunction with any other work or works..."

I added the bold. That essentially gives "sole and exclusive" rights to SZ to use "any part or parts" of Tolkien's writings for "any other work or works..."

So if you use Tolkien's creations in any work (or business or product) not a book, then you are violating SZ's rights. If you do it in a book, you are violating the Tolkien Estate's rights.

I'm making it sound completely cut and dry, but remember that the contract is hundreds of pages long and still the Estate and SZ get into court fighting over what is and isn't allowed by it, so there is an awful lot of additional verbiage and grey areas...

I see, thank you both for the information. I did not consider how much of the IP sits with SZ.

Just to add to the picture, you can also be sued in English law for "passing off". So if I start selling tatty figurines of "Gondalf the wizard" or "Sauror, the dark lord", I could aslo be sued by SZ or the Estate if it could be shown I was misrepresenting the figurines as "genuine" and damaging the goodwill of those businesses. That exists even where there is no registered trademark (even if I change the spelling a little to try to avoid trademark infringement).

Gawain wrote:

Just to add to the picture, you can also be sued in English law for "passing off".

Quite true, here in the US as well. Thanks!