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Who knew that Hermione would turn out to be a dude?

hermione.jpgYeah, that’s right - I just spoiled Harry Potter and the Deathly Hallows for you. Turns out Hermione was holding a pair of aces under that robe.

The connection with our site, however, is because of an interesting trademark dispute over “Muggles.” As Potter fans know, “muggle” is the term used to refer to normal folk who can’t do magic. “Cafe Muggles,” meanwhile, is what Jim Salzer wanted to call a restaurant/nightclub he was planning to open way back in 1979. While that project of his failed, he just loved the term “muggles,” and so he kept his grimy mitts on the trademark registration he’s held since ‘79. This doesn’t sit well with Warner Brothers, obviously, who owns the Potter movie and merchandising rights, so they offered Salzer $1 million for his trademark rights. Salzer tossed a Cruciatus curse Warner’s way and told them to get bent.

While there has been another lawsuit over various Potter terms, including “muggles” (a case which ultimately went Rowling’s way), Salzer hasn’t thrown his hat into the litigation ring just yet. For now, anyway, he says:

I’ve never contested the use of the name. I never said you couldn’t use it in a book, or in the movies. That’s not an issue with me.

But he says it might just become a nasty issue if Warner Brothers starts marketing and advertising with the term. And so he and his lawyers are carefully watching what happens with the planned Potter amusement park scheduled to open in 2009, and it’s safe to say that he may well soon be tossing his sorting hat into the ring.

But here’s my question - trademarks are only valid when one continues to use them in commerce. If he hasn’t been using “muggles” since his failed 1979 restaurant endeavor, I’m not sure what claim he still has to the term. He has apparently created a cat character called “Muggles” which he’s used in advertising other products over the years. But his registration only lists “retail gift and novelty store services” and “restaurant and night club services” for the mark’s relevant goods and services, so he doesn’t have a broad range of protectable rights, to the extent he even has rights at this point – I guess it’ll come down to how much he’s actually used Muggles the Cat and in connection with what type of products.

(Hat tip to Likelihood of Confusion.)

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Comments

Hi, Seth, and thanks for the link. His common law trademark rights may be greater than the rights protected by his registration. But you raise a good question!