M.C.A. Hogarth’s book, Spots the Space Marine: Defense of the Fiddler, is described as “Pollyanna meets Starship Troopers.”  M.C.A. Hogarth is self-published author who focuses mostly on science fiction, fantasy, and humor.  Last month, Hogarth was surprised when Amazon blocked the e-book version of Spots the Space Marine from being sold.  The reason?  The English game company Games Workshop, which makes tabletop war games, alleged that Hogarth’s book title infringed their trademark rights in the term “Space Marines.”  This sparked a controversy pitting the author against the game company.  The Electronic Frontier Foundation, among others, stepped in to help get Hogarth’s book back on the e-shelves.

As Hogarth and others were quick to point out, Space Marines are not exactly new in the science fiction genre.  According to Wikipedia, the first known use of the term was in 1932 in the title of Bob Olsen’s short story “Captain Brink of the Space Marines.”  Space Marines have since appeared in several iconic science fiction works, including Starship Troopers, Doctor Who, Battlestar Galactica and (somewhat) in Avatar.  Science fiction icons like Wil Wheaton and the author Neil Gaiman tweeted support for the author.

Now Games Workshop does have a clear history of using the term Space Marines in their board games.  Specifically, the term “Space Marine” showed up in the Games Workshop game “Warhammer 40,000,” which was created in 1987.  Games Workshop does hold a registered trademark for the term for board games and miniature figures as well as another registration for the term in video games.  Apparently Games Workshop also holds a European registration for printed material and has its own set of “Space Marines” books.  However, only the Kindle version of Hogarth’s book was taken down.  Also, the term appears to be pretty generic in the realm of science fiction novels and films.  Considering the lack of distinctiveness of the term, it seems unlikely that a reader would confuse the two.  The fact that Amazon chose to reinstate the book seems to recognize this.

Again, this seems to be another case of a company choosing to challenge a plaintiff they probably should not have.  Hogarth’s story evokes sympathy.  Hogarth appears as the David figure standing up to the much larger Goliath.  It doesn’t hurt that she also donates a portion  of her proceeds from the book to charity.  As EFF points out, strategies such as requesting an Amazon takedown can be a quick and easy effort for the claimant, but have a big impact on authors like Hogarth.  Without help from these organizations, it is difficult for someone like Hogarth to contest this sort of takedown.  So this is an area that exists in a difficult area where websites likely don’t have the time to fully analyze whether a book is actually violating someone else’s rights.

For now, Spots the Space Marine is now available for download, again, and the book appears to be benefitting from the increased publicity.  Games Workshop has appeared to have angered science fiction fans, who are highly likely to be Games Workshop customers.  While trademarks do need to be protected, it is still important to consider how litigious action appears to the potential audience.

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