The direct-sale start-up OR Books, founded by John Oakes and Colin Robinson, announced their inaugural title yesterday–which just happens to share some striking similarities with another prominent forthcoming release. OR Books is issuing GOING ROUGE: Sarah Palin, An American Nightmare on November 17, the same day when HarperCollins publishes GOING ROGUE: An American Life by Sarah Palin. Comprising essays assembled by Nation editors Richard Kim and Betsy Reed, it promises “progressive perspectives on Sarah Palin’s political career” by writers including Naomi Klein, Jane Mayer, Katha Pollitt, Jim Hightower, Christopher Hayes, Gloria Steinem, Joe Conason, and Tom Frank.
Harper had no comment on the OR Books cover, so we asked Ned Himmelrich, head of the intellectual property department at law firm Gordon Feinblatt, for an assessment of whether the cheeky new cover crosses legal lines. “Although the first instinct is to believe that the “Nightmare” book has to be infringing” the publishers “may have found a seam in Palin’s protection.” He added: “Titles of books cannot be protected as trademarks (a clear rule); trademark protection does not accrue until the mark is used (no sales yet); both books would be “in use” on the first day (Palin cannot claim first use); “Trade dress” does not exist unless the graphics are inherently distinctive (doubtful) or well recognized (too soon); and the “Nightmare” title may even be a valid parody (a good defense). Each of these theories has a countervailing argument, but on each, the legal arguments might be a nightmare for Palin.”
Meanwhile, the real Sarah Palin will appear on The Oprah Winfrey Show on November 16.