TradeMark Express Blog: All Things Trademark

Copyrights and Patents: Visual Arts Copyright Registration

First, let's pinpoint what falls into the visual arts category. Here's the list of examples from the US Copyright Office:

"Examples of visual arts works:

Advertisements, commercial prints, labels
Artificial flowers and plants
Artwork applied to clothing or to other useful articles
Bumper stickers, decals, stickers
Cartographic works, such as maps, globes, relief models
Cartoons, comic strips
Collages
Dolls, toys
Drawings, paintings, murals
Enamel works
Fabric, floor, and wallcovering designs
Games, puzzles
Greeting cards, postcards, stationery
Holograms, computer and laser artwork
Jewelry designs
Models
Mosaics
Needlework and craft kits
Original prints, such as engravings, etchings, serigraphs, silk screen prints, woodblock prints
Patterns for sewing, knitting, crochet, needlework
Photographs, photomontages
Posters
Record jacket artwork or photography
Relief and intaglio prints
Reproductions, such as lithographs, collotypes
Sculpture, such as carvings, ceramics, figurines, maquettes, molds, relief sculptures
Stained glass designs
Stencils, cut-outs
Technical drawings, architectural drawings or plans, blueprints, diagrams, mechanical drawings
Weaving designs, lace designs, tapestries"

Now to file an application:

The application is fairly simple & the cost is $45 per application.

Despite what others state, a "poor man's" copyright is NOT the same as registering it. Here's what the US Copyright Office has to say:

"The practice of sending a copy of your own work to yourself is sometimes called a 'poor man’s copyright.' There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration."

Lastly, here are two great resources for Copyrights, the Creative Arts & Music:

Trademark News: One Example of how Losing a Trademark Translates into Cash Money

Terry Wilson is about to make some dough for changing her name and foregoing her potential trademark for "TightPod"™. Read about it here.

A quick search of the USPTO shows about 500 live marks that contain the word POD. Some belong to Apple, some are registered but many are still pending. What does this mean for all those pending marks? Do they have big money coming down the pike? Or will they be going down Opposition road at the USPTO?

Starting a Business Series: I Want to Start a Travel Agency

The best routes to take are to research the process of starting a business as well as the industry you're interested in.

I recommend checking out the Small Business Administration
, Entrepreneur, Start Up Journal, Wall Street Journal & Nolo’s Starting a Business – Resource Center. All four are great informational resources for the new/small business owner.

Associations may be a good avenue to explore. These organizations will address many of the thoughts, questions and concerns you'll inevitably have as well as many you haven't anticipated yet.

Research, research, research – this cannot be stressed enough. Read as much as you can about the industry. Here are some book titles that are relevant:

There are plenty of free informational resources out there. Here's just a handful:

Starting a Business Series: Starting a Cleaning/Janitorial Business

The best routes to take are to research the process of starting a business as well as the industry you're interested in.

Associations may be a good avenue to explore. These organizations will address many of the thoughts, questions and concerns you'll inevitably have as well as many you haven't anticipated yet.

Research, research, research – this cannot be stressed enough. Read as much as you can about the industry. Here are some book titles that are relevant:

There are plenty of free informational resources out there. Here's just a handful:

Starting a Business Series: Become a Mortgage Broker

The best routes to take are to research the process of starting a business as well as the industry you're interested in.

Associations may be a good avenue to explore. These organizations will address many of the thoughts, questions and concerns you'll inevitably have as well as many you haven't anticipated yet.

Research, research, research – this cannot be stressed enough. Read as much as you can about the industry. Here are some book titles that are relevant:

There are plenty of free informational resources out there. Here's just a handful:

Starting a Business Series: Starting a Staffing/Recruiting Agency

The best routes to take are to research the process of starting a business as well as the industry you're interested in.

Associations may be a good avenue to explore. These organizations will address many of the thoughts, questions and concerns you'll inevitably have as well as many you haven't anticipated yet.

Research, research, research – this cannot be stressed enough. Read as much as you can about the industry. Here are some book titles that are relevant:

There are plenty of free informational resources out there. Here's just a handful:

Starting a Business Series: How to Start a Consulting Business

The best routes to take are to research the process of starting a business as well as the industry you're interested in.

I recommend checking out the Small Business Administration
, Entrepreneur, Start Up Journal, Wall Street Journal &Nolo’s Starting a Business – Resource Center. All four are great informational resources for the new/small business owner.

Associations may be a good avenue to explore. These organizations will address many of the thoughts, questions and concerns you'll inevitably have as well as many you haven't anticipated yet.

Research, research, research – this cannot be stressed enough. Read as much as you can about the industry. Here are some book titles that are relevant:

There are plenty of free informational resources out there. Here's just a handful:

Starting a Business Series: I Want to Become a Virtual Assistant

The best routes to take are to research the process of starting a business as well as the industry you're interested in.

Associations may be a good avenue to explore. These organizations will address many of the thoughts, questions and concerns you'll inevitably have as well as many you haven't anticipated yet.

Research, research, research – this cannot be stressed enough. Read as much as you can about the industry. Here are some book titles that are relevant:

There are plenty of free informational resources out there. Here's just a handful:

Starting a Business Series: Start an Import/Export Business

Yesterday's post signaled the beginning (or rather I should say, continuing) of our Starting a Business Series. For the next few weeks, I'll post some handy links & information about starting different types of businesses.

On to the post…

The best routes to take are to research the process of starting a business as well as the industry you're interested in.

Associations may be a good avenue to explore. These organizations will address many of the thoughts, questions and concerns you'll inevitably have as well as many you haven't anticipated yet.

Research, research, research – this cannot be stressed enough. Read as much as you can about the industry. Here are some book titles that are relevant:

There are plenty of free informational resources out there. Here's just a handful:

Starting a Business Series: I Want to Open a Daycare

The best routes to take are to research the process of starting a business as well as the industry you're interested in.

Associations may be a good avenue to explore. These organizations will address many of the thoughts, questions and concerns you'll inevitably have as well as many you haven't anticipated yet.

National Association of Childcare Professionals

National Childcare Association

USA Childcare

To find licensing information for your state, check out the National Resource Center for Health & Safety in Child Care.

Research, research, research – this cannot be stressed enough. Read as much as you can about the industry. Here are some book titles that are relevant:

There are plenty of free informational resources out there. Here's just a handful:

Trademark News: Google ® Takes Steps to Avoid Going the Way of Aspirin & Zippers

The mighty search engine, Google ®, is doing what all trademark owners should be doing - monitoring and protecting their trademark.

In all actuality, getting people to stop using the trademark Google ® as a verb is going to be an uphill, never-ending battle. The mark has become so pervasive throughout Internet-speak, pop culture and every day usage. But, Google's ® doing what they have to do – to protect their brand, they have to take these necessary steps to ensure that their mark does not become diluted.

This has happened to trademarks in the past. Recognize any of these?

Aspirin – If only Felix Hoffman had been able to convince Bayer ® to file for a trademark and not just the patent.

Bikini – "Drawings of bikini-like suits have been found on wall paintings dating back to 1600 B.C." Jacques Heim and Louis Reard may have recreated the bikini but they sure didn't protect the name.

Escalator – This to-and-fro device had an incarnation as a ride at Coney Island back in 1895.

Zipper – The first manifestation of the modern day zipper, AKA the 'Clasp Locker' looked almost frightening.

A few changes of note...

Besides some outward changes (thank you Blogger Templates!), I've also added a few handy-dandy features.

My Links:

Contains links to Our Home Page, the articles I've written and my Yahoo ® Answers ® profile.

Trademark Related Links:

Of course, the USPTO is there but I also posted some handy links within the USPTO's pages and an invaluable resource link to Nolo.

Books, books & books:

The next three sets of links are fantastic book titles relating to trademarks, other forms of intellectual property and starting a business.

We'll be back on track tomorrow!

I'm updating the TradeMark Express blog today. A new post will be up tomorrow. Happy Monday!

Trademark News: The "Redskins" ® Trademark Debate Continues…

It was announced yesterday that the debate over the "disparaging" terminology, "Redskins" ®, has not ceased. You may recall the famous 1992 petition to cancel the "Redskins" ® registrations that were headed by Suzan Shown Harjo, a "poet, writer, lecturer, curator and policy advocate."

This is one trademark debate that I have strong, personal opinions about and I'm personally rooting for the six young American Indian people as well as the American Indian community as a whole. And here's why:

1) The term and anything similar to it is "disparaging." The root of the word is from the Middle English word, disparagen, which means to degrade. Racial slurs by their very nature degrade.

2) Based on the USPTO's description, it appears that these marks should not stand.

3) The degradation of any person or community really should not be acceptable in any sense, and this includes commercial endeavors. And it's up to all of us to ensure that.

This is not a matter of "political correctness" going overboard as one is wont to hear when this debate arises; it is a matter of right and wrong.

Again, this is just my own personal opinion and I'm not a lawyer so the debate will be decided by those "in the know."

Trademark News: Gene Simmons versus Jayne County: The Electric Chairs™ Trademark Debate

Gene Simmons' son, Nick has a band called Nick Simmons and the Electric Chairs. RuPaul noticed something not quite right.

While Jayne County & company may not have a trademark on the name, she should still have first use rights based on her Common-Law usage.

This brings up a good point and a question I get asked often – how do I protect my band's name? Well, here's a prime example – trademark it!

The USPTO has this to say:

"Is the name of a band a trademark?

It depends on how it is used. A band name may function as a service mark for entertainment services in the nature of performances by a musical group if it is used to identify and distinguish the service of providing live performances (see TMEP §1301.02(b), or as a trademark for a series of musical recordings (see TMEP §1202.09(a))."

Trademark News: Trademark Owners - The USPTO Inbox is Heavily Protected

It was announced today that Tumbleweed ® Communications Corp. will be protecting the USPTO's inbox with all sorts of handy-dandy features in order to ensure the safety of their systems.

What does that mean for trademarks owners and applicants? Probably, hopefully, nothing. However, since the USPTO's inbox is that much more heavily secured, it'll be up to each applicant to ensure that their messages are getting to the right party at the USPTO. And it's up to each applicant to ensure that they're getting their messages from the USPTO.

The easiest way to go about this is to:

1) Check your status here by entering in your 8-digit serial number

2) Scroll, scroll, scroll until you see the Status section. Here you will see the most up-to-date information pertaining to your mark.

a. If you sent the USPTO an email, it will say Communication Received from Applicant

b. If the USPTO sent you an email, it will say {Name of Document, e.g. Non-Final Action)} e-mailed

If you sent an email to the USPTO or should have received an email from the USPTO but did NOT, take these steps:

1) If you've been assigned to an examining attorney, contact them. This information can be found on your status page.

2) If you have NOT been assigned to an examining attorney, contact the Trademark Assistance Center at "800-786-9199 or 571-272-9250, Monday through Friday (except federal holidays) from 8:30 a.m. to 5:00 p.m. Eastern Time."

Trademark News: A Lawsuit with a Twist

Labels such as Sony BMG ®, Universal ®, Warner ® & EMI ® have filed a lawsuit against LimeWire ®.

The damages being sought are extreme, to say the least – "$150,000 for every time a copyrighted song was downloaded without permission." Let's see, the average album has about 12 songs on it – that's $1,800,000 for the downloading of ONE album ONE time.

This is the first case where a company, not individual users, could be sued for copyright infringement in respect to file sharing. The ramifications from this particular case will be groundbreaking & will, undoubtedly, affect copyright law on all sorts of levels.

Trademark News: Mon Dieu!

A new French copyright law could land you in the big house and out of €500,000 or 640 THOUSAND US Dollars!

I'm all for intellectual property protection as much as the next gal but that seems a bit extreme. Of course, the likelihood of such fines actually being enforced is more than likely slim to none, unless the violations are of an extremely malicious nature.

This reminds me a bit of the whole Metallica vs Napster hubbub of 2000, in that there's clear & defined sides and both make valid points. Simply put, there's those that love music & want to share it with others and there's those that worked hard to create that music & just want to get paid.

This debate will rage on for years to come...

Trademark News: Zizou Strikes Again…Sorta

Football (that's soccer to US folks) fans bemoan the fact that the World Cup ® has come and gone for another four years. Anyone who watched the final game between Italy and France could really only talk about one thing: the headbutt heard and seen 'round the world.

Well, someone has gone and filed for a trademark for this most famous of headbutts.

I wonder how Zinedine feels about this…

Trademark News: Going Surfing! Huntington Beach IS Surf City USA ®

On May 9, 2006, the Huntington Beach Conference and Visitors Bureau was granted a Federal trademark for Surf City USA ®. Today it was announced that the Bureau will be licensing their trademark for a wide variety of usage, including clothing, credit unions and bicycles.

The possibilities this opens for other cities is quite wide. Adding the licensing of trademarks to a city's economic portfolio could create exciting and interesting waves of revenue, especially for smaller or less well-known cities.

Imagine if you will…

South Coast Plaza ®, one of the premier shopping malls in the country, is located in Costa Mesa, CA. How about a slogan like, Where Orange County Shops

Bonnaroo ® is a 4 day music festival held every year in Manchester, TN. Slogans like Manchester – We Rock or Manchester – We Jam. Even a somewhat obscure one like Manchester – A Really Good Time; Bonnaroo is a Cajun slang term for, you guessed it – a really good time.

Huntington Beach or rather Surf City USA ® may just be the first swell of a fantastic ride for cities and their trademarks.

Trademark Info: How can Coke ® use Pepsi ® in their Commercials?

This is called nominative use or comparative advertising. Here's what Wiki says:

"Nominative use is a term a defense to trademark infringement in the United States, by which a person may use the trademark of another as a reference to describe the other product, or to compare it to their own."

Check here for further information.

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!

Trademark 101: What is a Trademark?