Trademark: Do I Need One for My Business Name and Logo?

Wondering if a trademark is important to you as a business owner? Let's start with the basics. A trademark is a word, phrase, symbol, or logo that distinguishes and identifies the source of goods of one company or person from another. For example, the name Kraft is trademarked, as is Nike's "swoosh" logo.

The list of what constitutes a trademark is long. A trademark can also be granted to unique packaging such as the shape of Coca-cola's bottle, building designs, color, sound, and even fragrance. Service marks receive the same legal protection, but are used to distinguish services instead of products.

Your business can acquire trade or service marks through the consistent use of a mark. The symbols TM and SM demonstrate the owner treats the mark as a trademark or service mark. There is no requirement to federally register at the trademark office. You are still protected under intellectual property laws. However, if another party uses your mark it can be more difficult to prove your ownership.

To register online with the United States Patent and Trademark Office (USPTO), go to www.uspto.gov. There is a registration fee for each name, logo, and slogan. Federal registration ensures another party is not already using your mark. A registered trademark gives you exclusive rights to use a mark with your particular goods or services. The USPTO can only register trademarks for marks that are used across state lines. A website customers can access in other areas can satisfy this requirement. Otherwise, you will only be able to apply for a state trademark.

Only a mark registered and approved by the USPTO can use the ® symbol. Since the application process can take many months to complete, use the TM or SM symbol in the meantime to establish your intention to use the mark as a trademark. Make sure you keep records as to when your mark was first used in commerce and regulate the use of your mark in the marketplace.

Wendy Maynard, your friendly marketing maven, is the owner of Kinesis. Kinesis specializes in marketing, graphic and website design, and business writing. Visit http://www.kinesisinc.com/resources/articles.html for more articles and free marketing wisdom.

Want to harness the power of kinetic marketing? Sign up for Kinesis Quickies, a free bi-monthly marketing e-newsletter: http://www.news.kinesisinc.com

Warning: Your Domain Name Could Infringe On Trademark Rights!

If you have or are about to purchase a domain name, YOU could be in trouble and you don't even know it yet...

See, what the domain sellers won't tell you is that the domain name you are purchasing or have purchased can possibly infringe on trademark rights and you can lose that domain name or even worse.

Trademark and servicemark laws apply not only off-line but on-line as well and they even apply to domain names.

Now, a trademark generally applies to goods where as a servicemark applies to services. For the purpose of this article I will refer to trademarks as the same rules apply.

A trademark can be a word, name, symbol, or device and it is used to distinguish and indentify the goods and services from one person or company from that of another.

The purpose of a trademark is to prevent confusion in the eyes of the consumer relating to particular goods and services. Basically, they are in place to prevent unfair competition.

So with that said, just because you purchased a particular domain name it does not necessarily mean you have exclusive rights to it.

If there is a trademark in your domain name, the mark owner has a legal right to send you a "cease and desist" letter and possibly take that domain name away from you.

If you don't believe a word I've said so far then I offer myself as proof because it happened to me. I recently lost one of my domain names under this exact same circumstance.

For legal reasons I can't tell you the domain name as I agreed to make no further references to it, but there were two words in my domain name that were associated with a trademark.

Now, I wasn't aware of this when I purchased the domain name. And I definitely wasn't aware of trademark laws.

Don't be ignorant on the subject like I was. You can avoid any potential problems by educating yourself and thereby preventing the samething from happening to you.

Don't make the same mistake that I did!

Do your research before you buy a domain name and make sure there is NO trademark associated with that name.

There are trademark search engines where you can type in a word or a phrase and it will tell you if it is a trademark.

You can visit the United States Patent And Trademark Office (USPTO) website to do a trademark search:

http://www.uspto.gov/

Now, in my case I chose not to fight the trademark dispute and gave up my domain name voluntarily. I felt it just wasn't worth the time, money and headaches to launch a fight over this.

If this should ever happen to you, you do have rights and there are proper channels to go through to settle the dispute. Contact a lawyer who specializes in this field.

And don't even think for one minute that this sort of thing can't happen to you. Trust me. If you have a trademark in your domain name it is only a matter of time before you get that letter in the mail like I did.

There are numerous cases all over the internet concerning disputes over trademark and domain names.

Don't you be one of them...

If you would like more information on the subject of trademarks and domain names then I highly recommend you visit this website:

http://www.chillingeffects.org/domain

This article and any links associated with it are for informational purposes only and not intended as legal advice. As always, speak to an attorney who specializes in this field in the event of a dispute.

Al Martinovic is the publisher of the Millenium Marketers Newsletter where you will find powerful concepts, killer strategies, useful tips and no bull business advice: http://www.milleniummarketers.com

Trademark a Name – How to Register a Trademark for Your Business

So, you finally settled on the perfect name for your product or service – it describes the business without being overly descriptive, it tells your customers exactly what you want them to know and it's catchy. That's fantastic! Finding just the right name is vitally important to the success of any product line or service.

Is it required that I register my trademark?

No, not at all. However, registering your trademark, specifically your Federal trademark, does provide you with several advantages:

• The right to use the circle-R symbol as notice to the public about your Federal trademark
• The exclusive rights to the name within your industry across the country
• Establishing brand identity

But what if someone else already came up with that name?

While the name may be unique and distinctive to you, there is a possibility that another party already has prior trademark or common-law rights to the name for your industry. Before you invest time, money and effort into your name, do some research. The first places to check are right at your fingertips – the World Wide Web – and they're free!

Preliminary Search Sites:

• The Trademarks section on the USPTO Web Site
• Your Secretary of State to see if they have a searchable database of names. You can find a listing of all states here
• Major search engines – put your product name in quotes to find exact matches; use keywords with your product name to find relevant hits
• Yellow pages

However, please be aware that this is merely scratching the surface of what's out there. Only comprehensive research will tell you if the name is truly available. But, these links are free & a great place to start, so try them first. If the name appears to be available, then you can move on to getting comprehensive research done by a private company or an attorney.

Ok, so the name is clear; now what?

To register your trademark, you have 2 options – file for a Federal or a State trademark. If you are only going to sell your product or services in 1 state, then a State trademark is the way to go. The trademark form can be acquired through the Secretary of State (see link above). If you are OR will be selling your products or services in at least 2 states, then you're able to file for a Federal trademark. The form can be completed online at the USPTO (see link above).

While anyone has the ability to go online to access these forms,it's strongly recommended to hire a private company or an attorney for the preparation and/or filing of the trademark application.To ensure a successful filing, it's best to leave it in the hands of those with experience.

You found the perfect name – now, make sure it's truly yours!

Shannon Moore is the General Manager, East Coast for TradeMark Express. Since 1992, TradeMark Express has met the needs of their clients with comprehensive research, application preparation, attorney referrals and trademark consultation. For further details, please visit us on the web at http://www.tmexpress.com

How Do You Get a Trademark?

While some individuals choose to hire attorneys to walk them through the process of applying for a trademark, others choose to use a trademark research firm, which can cost thousands of dollars less. It is important to remember when hiring someone to do your research that they not only search through Federal and State trademark records for name similarities, but also Common-Law listings.

Many people are under the impression that they can perform their own comprehensive search utilizing the help of search engines, in addition to the United States Patent and Trademark Office (herein referred to as the USPTO). While it is a good idea to become familiar with the USPTO website, individuals sometimes believe that the data they collect from this website is truly representative of the trademarked names which are currently being used. The USPTO’s website is never a thorough way to search the name you’re hoping to trademark! The website is not updated regularly, and in addition to this, you can ONLY search Federal trademark records on the USPTO, NOT State trademark records OR Common-Law records!

It is imperative to search Federal and State trademark records AND Common-Law records because it is the only way to ensure that your search was done in a comprehensive manner. Federal and State trademarks records are looking at businesses that have either a federally registered trademark, or those who have registered a state trademark. When these records are searched, any federal or state trademarks that are either pending or registered will be visible to the researcher. Common-Law records examine those businesses who are in business but not have necessarily filed for a Federal or a State trademark. When Common-Law records are searched, thousands upon thousands of newspaper articles, city business listings, periodicals, incorporation listings, DBAs, LLCs, etc. are examined for any name similarities. Although such businesses do not have a trademark, they might have "first-use rights" to the name. This could mean that they still have ownership over the name within their trade area AND the capacity to take legal recourse if they determine that your name and business is the same, or similar.

If the research proves clear, the next step is to prepare and file the application. This can be done by anyone; however, the USPTO is very particular about how the application is prepared, so it's best to leave it to professionals.

Three Steps -- Federal & State trademark search, US National Common-Law search and Application Preparation & Filing – and the Trademark could be YOURS!

About The Author

Marit Lee is a Researcher for TradeMark Express. Since 1992, TradeMark Express has met the needs of their clients with comprehensive research, application preparation, attorney referrals and trademark consultation. For further details, please visit us on the web at TradeMark Express or call Marit directly at 800.550.1520.

tmexpress.com

The Trademark Dilution Revision Act Of 2006 And Your Online Business

Creating the right trademark that distinguishes your product or service from others is the key to a successful business both online and off. However, one recent legislative enactment is worthy of note, as it might influence your decision in choosing the next name or graphic for your online business.

Like its predecessor, the Federal Trademark Dilution Revision Act of 2006 (“Act”), signed into law in mid-October by President Bush, provides remedies for owners of “famous” trademarks (e.g. trademarks that are widely recognized by the general consuming public in the U.S. as a designation of source of goods or services of the trademark owner). Plaintiffs can file an action for dilution and obtain injunctive relief by showing their trademark has been “diluted” by the unauthorized use of another.

The Act provides for the cause of action known as “dilution.” Dilution is a relatively new addition to trademark law that allows a plaintiff to recover from another’s unauthorized use of his trademark where such use degraded or diminished the uniqueness and/or distinctiveness of his famous trademark.

Usually dilution is referenced together with the concepts of blurring and tarnishment. The revised Act specifically cites “dilution by blurring” and “dilution by tarnishment” as new causes of action in themselves. In all its forms lies the dangerous misperception that dilution claims require a showing of consumer confusion. Dilution claims, including blurring and tarnishment, require no showing or likelihood of confusion.

The revised Act is especially relevant to the online business owner in the initial stages of choosing a trademark name or graphic. Under the new cause of action for “dilution by blurring” you may run into problems simply by choosing a trademark that is similar to a famous trademark that causes the famous mark to lose its distinctiveness. Regardless if you adopted your trademark in good faith with no intention of piggy-backing off of the goodwill of a famous name brand, you may be sued for dilution by blurring. Similarly, under the new cause of action for “dilution by tarnishment” you may encounter problems by choosing a name similar to a famous brand if your use causes the famous trademark to suffer loss to its reputation.

It is particularly important to note that the new causes of action for dilution, dilution by blurring and dilution by tarnishment apply a “likelihood” of dilution rather than an actual dilution standard. This means that a plaintiff need only allege that your use is likely to cause or may potentially cause damage to their reputation or to the distinctiveness of their trademark. This new standard wields great power to owners of famous trademarks and could prove potentially lethal to the unsavvy online business owner or entrepreneur.

However, this new power is not absolute and will likely have little effect on comparative marketing and advertising both online and off. Under the revised Act, it is not actionable to compare your goods with that of a famous brand. It is also not actionable to parody a famous brand or trademarked product. For online marketers, this is important, as the Act preserved the traditional free-market idea of comparative advertising. Thankfully Congress recognized and appreciated the benefits of comparative advertising, maintaining its integrity in the revised Act.

From the recent Google decision and this revised Act by Congress, one can glean that although the strings are drawing tighter around the ever-expanding World Wide Web, it remains open to free-market competition and entrepeneurism. However, as trademark law evolves through judicial opinions and legislative enactments, it is always the best advice to consult an experienced intellectual property attorney before setting your branded product or service out into the world through the ether or otherwise.

About The Author
This article was written by Gemma Hoffman, a graduate of Franklin pierce Law School. Gemma writes select pieces regarding intellectual property for the law firm of Goldstein and Clegg, LLC, a http://www.goldsteinandclegglaw.com.

Craft Show Items - Patents and Trademarks

These are similar to, but not exactly like a copyright. In fact, a patent and trademark are a far more in-depth than a simple copyright on your craft show items.

"A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions.

The right conferred by the patent grant is, in the language of the statute and of the grant itself, 'the right to exclude others from making, using, offering for sale, or selling' the invention in the United States or 'importing' the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention." (www.uspto.gov)

Therefore, a patent differs from a copyright in that it affords you the exclusive right to make, use or sell your craft show item and excludes others from doing so without your permission, while a copyright prevents others only from copying your designs. However, a patent is generally not appropriate for forms of creative expression but rather for a process, a machine or tool used to create a product or a composition of matter such as a new metal alloy or chemical compound.

Considering the time, effort and cost to secure a patent, in most cases for most craft show items, a copyright will suffice. Patent fees run several hundred to several thousand dollars and you will most likely need an attorney, so this is a costly process. Again, check with other crafters, organizations, attorneys and Web sites to find out what is best in your case.

Trademarks (and servicemarks)

"A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms 'trademark' and 'mark' are commonly used to refer to both trademarks and servicemarks.

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office. The registration procedure for trademarks and general information concerning trademarks is described in a separate pamphlet entitled 'Basic Facts about Trademarks.'" (www.uspto.gov)

You may want to consider registering for a trademark if you have created an exclusive name, such as "Cabbage Patch Dolls" or "Hula Hoop." Since you can easily file online and the cost is around $300, consider filing if you have a craft show item that needs trademark protection.

About The Author

Natalie Goyette shows you how to make your craft show business profitable in her best selling ebook: Craft Show Success Secrets. Visit her site: http://www.craftshowsuccess.com

Copyrights, Patents & Trademarks for Selling at Craft Shows

Copyrights, are common concerns for craftspeople. If you've invented a unique product, you will more than likely want to protect it from others who can create knock-offs of your craft show gem at cheaper prices. Although it may be flattering to have created a craft item others want to duplicate, it can also be a nightmare to see your distinctive creation on the Home Shopping Network! The United States Patent and Trademark Organization Web site (www.uspto.gov) is a good place to learn the differences between trademarks and patents and to learn what is best for your situation. For more information and to apply for a copyright go to www.copyright.gov.

Although attorneys may be costly, some offer free 30-minute consultations, so you may be able to find one who can tell you what's the best protection for your craft show product. If you find the costs are prohibitive for you to secure a trademark, patent or whatever you find you need, you'll just have to take your chances without one. Again, check with other crafters through shows and forums, as well as your craft organizations to find out what they've done to protect their crafts. Those who have come before you can ease your way so you don't have to reinvent the wheel.

Your Copyright

"A copyright is a form of protection provided to the authors of 'original works of authorship' including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. This includes your craft show products.

The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress." (www.copyright.gov)

Most people think of copyrights for books or music and not creative arts like paintings or crafts, but a copyright can protect all forms of creative expression and visual arts. Visual arts are defined as original pictorial, graphic and sculptural works, which include two-dimensional and three-dimensional works of fine, graphic and applied art. Some examples are:

Artificial flowers and plants Artwork applied to clothing or to other useful articles Collages Dolls, toys Drawings, paintings, murals Enamel works Greeting cards, postcards, stationery Jewelry designs Mosaics Needlework and craft kits Original prints, such as engravings, etchings, serigraphs, silk screen prints, woodblock prints Patterns for sewing, knitting, crochet, needlework Reproductions, such as lithographs, collotypes Sculpture, such as carvings, ceramics, figurines, molds, relief sculptures Stained glass designs Stencils, cut-outs Weaving designs, lace designs, tapestries

A copyright gives the creator of the product exclusive rights to produce, sell and distribute the item. When your work is created, it is automatically copyrighted, however, for optimum protection, it's best to apply for a copyright. When obtained, you can add the copyright symbol (c) on all your materials.

Copyright your designs, so you have legal proof in case someone copies your work. A copyright does not automatically keep someone from stealing your designs—you'd have to find the culprit and enforce your rights, which may not be a simple matter and will require an attorney. Having the copyright, however, may deter someone from copying you, so at least that's a good place to start—and it only costs $30 per copyright!

About The Author

Natalie Goyette shows you how to make your craft show business profitable in her best selling ebook: Craft Show Success Secrets. Visit her site: http://www.craftshowsuccess.com