06 February 2008

More on Silent E

Sarah Weinman printed an edited version of an e-mail from the silent-e Inger Wolfe today that actually reinforces my comments from last Thursday on the need for more sophisticated analysis of pseudonyms... before they get chosen.

Weinman quotes "Inger Ash Wolfe" as saying:

[A]t the time I began writing The Calling, in the early fall of 2005, I did a search on the name and came up with nothing. (If you put "Inger Wolfe" — with the 'e' — into Google, no references to the Danish Inger Wolf, prior to the ones in your blog, come up at all). Later in the fall of 2005, I checked for similar names and different spellings just to be sure: Inger, Ingrid and Ingmar Woolf, Woolfe, and Wolf. And that's when I found the Danish Inger Wolf. When I discovered her, she had published one book in Danish — a literary novel entitled Sidespring — which had appeared in 2000. At that time, I consulted with my agent (The Calling was not finished yet and had not been sold), and we agreed that the work I was doing was significantly different from the work of the Danish author named Inger Wolf, as it was written in a different genre, as well as in a different language; it was not available, five years after its publication, in any other language than Danish, and also it seemed that this author might no longer be active as a published writer: nothing else had come out since her debut. As a result I continued with my plan to use the name with its spelling different from hers.

(bold emphasis supplied) Let's look at just a few of the problems this raises.

  • The bold-faced language completely destroys any claim that silent-e Wolfe was unaware of the Class 16 (and probably Class 41) goods available from the Danish author, regardless of the earlier-in-the-paragraph reliance on Google as a sufficient search. Thus, we're probably into willfulness territory, absent an appropriate opinion from counsel after sufficient investigation.
  • The statement of alternate spellings checked seems almost willfully ignorant of the most-common alternate surname spelling of "Wolf."
  • Checking domain registrations shows that the Danish author grabbed that website name on 23 September 2003 — two full years before Canadian "Wolfe" allegedly chose that pseudonym.
  • The bold-faced language also reflects complete ignorance of how trademark law works, either in the US or EU... let alone how other aspects of unfair competition law work. Nonetheless, the agent clearly gave advice on circumstances covered by that law (or, at least, "Inger Ash Wolfe" asserts that the agent gave such advice).

My point is not that this is an egregious attempt to trade on the Danish author's good name. It is that the parties who were not the senior users of the mark floundered. I sincerely hope that everyone comes to an appropriate agreement on the substance of this particular "conflict," and I suspect that won't be too difficult. The problem is that the process was — like so much else in publishing — inept, insufficient, and insane. Canadian Wolfe essentially took legal advice from his/her agent. His/her agent should take a very, very careful look at the unauthorized practice of law statute in his/her (the agent's) jurisdiction, and resolve never to cross that line again.

Unless, of course, he/she is a lawyer... which would lead to more, and more interesting, questions for which the legal community itself is even less prepared than the publishing community (if that's possible). Multijurisdictional practice is hard enough!