Trademark Info: What's the deal with the © ® ™ symbols?

The ™ symbol is to be used for marks that either have a pending trademark application OR for marks that are simply claiming the rights to the mark.

The ® symbol is to be used for marks that have a Federally registered trademark.

Trademarks can be names of products or services, logos, slogans, packaging and even sounds and smells. In essence, a trademark can be almost anything that is used to identify a particular product or service. Registering a trademark grants the owner exclusive rights to the mark within the specified industry. Of course, it's necessary to research the mark comprehensively prior to filing to ensure that there is no possibility of infringing upon another party.

The © symbol is used to denote copyright ownership.

Copyrights can be obtained for things of an artistic nature. This includes, of course, poetry, films, sculptures, music, fiction, etc. But can also include things that may not necessarily seem "artistic" in the general sense of the word. Copyrights can also be obtained for advertising copy, games, software programs and blueprints, to name just a few.

Trademark Info: HELP! I found a company that has my same name.

Determining if marks infringe can be tricky and each situation varies from another.The general rules to keep in mind are:

1) Are the names similar in Sound, Appearance or Meaning?

2) Are the industries the same or similar to one another?

3) Are the names confusingly similar to the average consumer? In other words, could customers be confused and assume that both companies are affiliated?

4) Do the trade areas cross? What about the advertising routes -- are the products/services advertised in common places?

Here's what the USPTO has to say about this matter:

"The principal factors considered by the examining attorney in determining whether there would be a likelihood of confusion are:

the similarity of the marks;
and the commercial relationship between the goods and/or services listed in the application.

To find a conflict, the marks do not have to be identical, and the goods and/or services do not have to be the same. It may be enough that the marks are similar and the goods and/or services related."

It's best to contact a private search company or a trademark attorney to assist you in determining if this will be a problem or not.

Trademark Info: How do You Get a Trademark?

Since yesterday's post was about how you can't copyright a business name, it only makes sense to talk about how do you get a trademark?

Copyrights and Patents: How to Copyright a Name

Simply put, you can't. To protect a business name within your industry, you would apply for a trademark.

Copyrights can be obtained for things of an artistic nature. This includes, of course, poetry, films, sculptures, music, fiction, etc. But can also include things that may not necessarily seem "artistic" in the general sense of the word. Copyrights can also be obtained for advertising copy, games, software programs and blueprints, to name just a few.

To protect a business name within your industry, you would apply for a trademark.

Trademarks can be names of products or services, logos, slogans, packaging and even sounds and smells. In essence, a trademark can be almost anything that is used to identify a particular product or service. Registering a trademark grants the owner exclusive rights to the mark within the specified industry.

Of course, it's necessary to research the mark comprehensively prior to filing to ensure that there is no possibility of infringing upon another party.

Trademark News: One Swell Foop - Microsoft versus 26 "Pirates"

Microsoft has always taken its intellectual property seriously but never has this been more apparent than with yesterday's filing of 26 lawsuits. Read more here.

Trademark Info: Business Name – How to Name a Business

The naming of your business could be one of the most important decisions you will make. A name's originality and legal availability will create a real asset value of its own, as it becomes marketed and gains market acceptance. The name you choose will become the focal point of all the benefits and features that relate to your business. Customers will be able to find and refer others to it in the future.

I suggest either hiring a name creation firm or get together with your friends and/or family and throw a "name party" & have everyone bounce some ideas around. Compile a listing of names that you like the best. Once you have that list, do as much free research as you can before you delve into comprehensive research.

I listed some links where you can do some preliminary name checking. 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 I'd try them out first.

Comprehensive research consists of looking at marks that are similar in Sound, Appearance or Meaning in the pending & registered Federal AND State trademark files as well as the US National Common-Law files.

USPTO -- Go to the TRADEMARKS section
NOLO's Trademark Resource Center
Go to your state's Secretary of State page to see if they have a searchable database of business names
Hoovers
ThomasNet – Must register (free) to search their database

Trademark Info: Trademarks – What is a Conflict? What is a Strong Similarity?

Comprehensive trademark research consists of several layers:

• Researching comprehensive databases, such as Lexis-Nexis or Dialog


• Looking for similarities, such as synonyms, word placement & spelling variations


• Consultation with a trademark attorney if Conflicts or Strong Similarities arise

The hardest matter to determine is what's going to be a potential problem for you and what isn't. Once that is ascertained, further research into the company or companies is needed.

First, let's discuss the difference between conflicts and strong similarities.

What is a Conflict?

Determining a conflict is very simple - it's any mark that is EXACTLY like yours. If the name AND the goods/services are EXACTLY the same, then it's a Conflict.

What is a Strong Similarity?

These are harder to determine and require analysis. A Strong Similarity is a name that is similar enough in Sound, Appearance or Meaning to be confusingly similar to the average consumer. Here are some examples to aid you:

• Joe has a pending Federal trademark for his auto detailing service called It's in the Details. Becky wants to call her new auto detailing service, It is the Details. They are both offering the same service and their trade areas cross. This is a Strong Similarity, based on Sound & Appearance and Joe's pending Federal application.



• Mary has a Federally registered trademark for her clothing line, Scary Mary's Apparel. Dan wants to use the name Mary Frightful Wear for his clothing line. This is a Strong Similarity, based on Meaning & Mary's Federal registration.

• Sam has a California state registered trademark for his restaurant, Crabtastic Eats! and has no plans to expand outside of the state and primarily serves locals. Hannah's restaurant, Crabtastic, is located in Maine. She also has no plans to expand outside of the state and primarily serves locals. This is NOT a Strong Similarity based on their different trade areas.

• Lorena's online payroll service, Pay Up, has been in use for 15 years and has clients across the country. Gene wants to start an online payroll service called Wage Wizard. Neither of them have trademarks. This is NOT a Strong Similarity based on the dissimilarity in the names.

Naturally, there will be exceptions to every situation. For instance, similar trademarks (in name and goods/services) can coexist peacefully if both parties are comfortable with one another’s existence. This can happen if trade areas do not cross (e.g. located on opposite coasts), if they appeal to different consumers (e.g. one sells to private industry while the other sells to the general public), etc.

*No claim is made to the ownership, knowledge or liability of the above personal and/or company names. The above examples are merely for informational purposes and should only be seen as such.

Domain Names: The ONE Mistake Commonly Made when Registering a Domain

You found the perfect domain name for your business and it's available. You're free to register it, right?

WRONG!

While the name may be available on domain registries, it could easily be owned by another party on the trademark or common-law levels. Prior to registering your domain name, it is strongly advised that comprehensive research be conducted.

It is every business owner's responsibility to ensure that the name they're using is truly available. Don't assume that the name is available simply because you're able to file for the domain.

Comprehensive research includes searching the:

• pending and registered Federal trademark files;


• registered State trademark files;


• national Common-Law files, which includes DBAs, incorporations, product announcements, newspapers, company directories, etc.

Comprehensive research should also include a search of names that are similar in Sound, Appearance or Meaning! This entails searching synonyms, word placements, spelling variations. It's not just exact names that could be a problem for you; similar names matter too!

Another important area that should be paid attention to is the industry. Completely different industries with the same or similar names should not be an issue to one another. But, of course, like with so many issues dealing with names, there are grey areas and each situation differs from the next.

While there are some free preliminary sites you can search, it's best to leave the comprehensive research to a professional search company or a trademark attorney.

Don't make the mistake of assuming no one else owns your domain name – only comprehensive research will tell you that!