We generally recognize that a trademark is any word, slogan, or symbol used to identify the source of goods or services used therewith. McDonalds for restaurant services, the Nike “swoosh” for shoes, and the iconic apple for, what else, computers. But did you know that you also can protect colors as trademarks? Sounds? And even the overall look and feel of a business? You can, and here’s how.
1. Trade Dress
Trade dress is a type of trademark that generally protects characteristics of the visual appearance of a product, its packaging, or even the overall look and feel of a business so long as it signifies the source of the product to consumers.
What can be considered trade dress you may ask? We’ll let’s look at some examples:
A. Product Design
The design of product packaging can be registered as a trademark provided that the packaging identifies the source of the product and is not attempting to be registered to protect some functional element of the packaging (that would be a patent). The best example of this we know of is the shape of a Coca Cola bottle. Everyone recognizes the hour-glass looking design as containing that little slice of heaven from those folks from Atlanta. So when you see the design of the traditional Coca Cola bottle and you recognize it as the bottle in which Coca Cola provides its product, that is the perfect example of packaging which functions as trade dress and, correspondingly may be protected by a Trademark Registration.
B. Color Schemes
Color schemes of restaurants as well as similar features of businesses can also be protected as trade dress under U.S. Trademark Laws. For instance, if you have been operating a uniquely designed or themed restaurant or business for some time and then begin to franchise the same the color scheme and other elements of your business may be protectable as trade dress. For instance, on the East Coast we have a restaurant franchise that is expanding rapidly called Five Guys. Five Guys offers great burgers and fries. For our purposes today, however, it is important to know that no matter how the restaurants appear on the outside they all have one common theme on inside: red and white checkerboard tile walls. So when you walk into the restaurant, even if you did not see the sign on the front of the building telling you that you are in a Five Guys, you know that those red and white checkerboard tiles mean that you are about to have a bacon double cheeseburger with a side of double-fried french fries like no other. You know you are in a Five Guys. And if you know this merely by looking at the color scheme on the walls that is the fundamental point of trade dress protection.
C. Overall Appearance
Additionally, and drawing upon the above, an overall appearance of a trademark used in connection with a product or service can be protected. This is where trade dress gets a little broad and often difficult to digest. But for our purposes we’ve talked about color schemes and package designs. The law has also been used to extend to generally recognized images and manners of presentation as well. We think the ongoing story of the Naked Cowboy best captures this concept.
For any of you who have been to New York City in the past decade or so there is symbol of America right in Times Square that cannot be missed. The ball that drops every year at the stroke of midnight you may ask? No. The giant billboards and flashing neon and LED screens 30 stories high? Nope. We are talking about Robert John Burck, aka - the Naked Cowboy.
Since 1997 the chiseled and tanned Naked Cowboy has strolled through Times Square wearing nothing but a pair of white briefs, white boots, matching cowboy hat, guitar and a smile singing to tourists and posing for photographs. Like the U.S. Postal Services’ age-old motto neither rain nor sleet nor dark of night can stop the Naked Cowboy. You can catch him strolling through Times Square during the dog days of summer through the coldest days of winter – all still in his iconic skimpy manner of dress.
A few years back Mars, Inc., the owners of the M&M brand of candies, opened M&M World in Times Square. As the popularity of the Naked Cowboy grew Mars thought it would be a great marketing ploy to parody the Naked Cowboy with a Times Square billboard of one of their M&M characters dressed in white briefs, white boots, the white cowboy hat and white guitar. Well the Naked Cowboy wasn’t down with that tune. He sued. And guess what? He won (or at least won a settlement). In short, his lawyers argued and convinced Mars that the Naked Cowboy’s overall likeness and image was protectable and, accordingly, by posting the billboard Mars was infringing upon the Naked Cowboy’s trademark – and trade dress - rights.
So as the Naked Cowboy teaches us even the overall appearance of a performer or otherwise can be protected as trade dress if that overall appearance has sufficient recognition value.
A post script to this example, as of press time it has been reported that the Naked Cowboy is now enforcing his rights against a performer who has materialized and is calling herself the Naked Cowgirl. Given that he has already enforced his trade dress against one of the world’s largest candy manufacturers, our recommendation to the Naked Cowgirl: get outta Dodge.
2. Colors
Another form of trademark protection can be found in the ability to protect colors. Not color schemes as above. Just colors.
There is perhaps no better example of this in recent times then UPS’s attempts to register the color brown in connection with shipping services. In the early 2000s UPS determined that it wanted to lock up the color brown. The U.S. Patent and Trademark Office initially denied their efforts.
Ultimately it was held that a business can protect a mere color as a trademark, but only if it can show substantial evidence of acquired distinctiveness in the color as a trademark. In other words when consumers see a specific color they think of your goods or services. That’s why, for the past several years, UPS has run the ad campaign “What Can Brown do for you?” They are ingraining in the minds of the consumer that when they see the color brown they think about UPS’s shipping services.
So you can protect merely a color, but it will cost you a lot of green.
3. Sound Marks
Lastly did you know you can protect sounds as trademarks? It’s true. The rumble of a Harley Davidson. The “Bum ….. bum bum bum bum” of Intel. Even the message alert sound of plane that Southwest Airlines uses in its commercials. These can all be protected as trademarks provided, as above, the trademark holder can show that in the minds – and in this case ears – of the consuming public when they hear that specific sound they think of the specific company’s goods or services.
Conclusion
So why do these matter? In protecting your brand identity people are often constrained to thinking about protectable trademarks as being merely a slogan, a logo, or a company’s name. But as we see above, a Trademark Registration can extend to protect a whole host of other things that consumers use to identify the source of a product or service.
So if you are a performer with a unique image and persona, a business that uses a specific pattern of décor or layout, or package your product in a unique package design that your competitors love to imitate remember the U.S. Trademark Laws are here to help you protect these signature trademarks as well.
The Trademark Company
Monday, July 26, 2010
Thursday, July 22, 2010
3 Reasons to Perform a Trademark Clearance Report Before You Begin Use of a New Trademark
3 Reasons to Perform a Trademark Clearance Report Before You Begin Use of a New Trademark
We are often asked by our prospective customers why should I perform a trademark clearance report? Our answers are always the same. Here are the top 3 reasons why we feel you should always conduct Trademark Research in the form of a Trademark Clearance Report prior to adopting and beginning use of your new trademark.
1. U.S. Patent and Trademark Office (“USPTO”) Filing Fees Are Non-Refundable
First and foremost filing fees paid to the USPTO are non-refundable. In other words, if you file for your mark and your mark is ultimately block based upon a likelihood of confusion with an existing mark you have forfeited the cost of your filing fees paid to the USPTO in the filing of your Trademark Application.
A trademark clearance report, even one as simple as a Basic Federal Database Search which costs a fraction of what it costs to file for protection of a trademark with the USPTO, is often a cost-effective method to evaluate whether your mark is clear to be registered and, if so, whether you should proceed forward with filing for the Trademark Registration or decide upon another mark if the same is not available.
2. Don’t Develop a Brand You May Be Forced to Give Up
Second, a Comprehensive U.S. Trademark Research Report – one that includes a search of not only the USPTO’s databases but also state trademark and corporate databases – will not only let you know if your trademark is clear to registered but also whether you are likely to infringe upon another’s use of an already-existing trademark whether it be filed with the USPTO or not.
Note, trademarks are not required to be registered with the USPTO to be afforded protection state and federal protection. Rights to trademarks can be acquired merely by use thereof or what is generally referred to as at common law.
So imagine the scenario, you are a California restaurateur. You come up with what you think is a unique name, let’s say Suntopia. You open your first restaurant in Los Angeles. Since you came up with the name you figure it must be available so no research report is performed. Business is great. You open a second location in Palm Springs and later a third in Las Vegas. You register the trademark with the USPTO and life is good. A few years go by and you are now famous. Your restaurants are the toast of the town. You routinely appear on the Jay Leno show as a celebrity guest chef. And then one day you get a letter from a law firm in Florida. The letter reads “Dear so in so ... our client has been using the mark Suntopia in connection with a chain of restaurants in the States of Florida and Georgia for over twenty years. We demand you immediately change your name. P.S. Loved you on Leno. The pesto-encrusted sea bass was great.”
You’re crushed. How could this be? You came up with the mark in a dream sequence fit for a Hollywood film. This must be your trademark.
Sadly who wins? More likely than not the Flori-Georgians. Who looses? You do. What happens to the years of blood sweat and tears building your brand Suntopia? Gone. And to think, all of this could have been resolved if only you would have spent a few dollars up front and had a trademark clearance report performed. Then you would have known to come up with another mark instead of spending years of your life and countless resources building up another’s pre-existing brand.
After all, as most practitioners and entrepreneurs know alike, it is the enterprise that creates the brand. The brand does not create the enterprise.
3. Having a Trademark Clearance Report Performed Is Evidence of Your Reasonableness in Adopting a Trademark
Third, did you know that should you ever get sued for trademark infringement the fact that you had a clearance report issued which cleared the adoption and use of your mark may be used as evidence in that case as evidence of your reasonableness in adopting the mark.
Trademark litigation counsel love it when an accused infringer did not perform a trademark clearance report. In the hands of a skilled lawyer this can be manipulated into showing a callous disregard as to the existing trademark rights of others by the purported infringing defendant.
But if you have a trademark clearance report performed, and if that report “clears” use of your mark, the opposite may be true. Should you ever be sued over the use of the trademark your lawyer can mount a defense on the reasonableness of your selection of the mark backed by objective evidence at or before the critical point of adoption of the mark: your trademark clearance report.
Conclusion
So whenever considering the adoption of a new trademark, be you a small start-up business or a multinational corporation rolling out new product after new product, remember to always have a trademark clearance report performed before you begin use of your mark. It is well worth the investment.
The Trademark Company
We are often asked by our prospective customers why should I perform a trademark clearance report? Our answers are always the same. Here are the top 3 reasons why we feel you should always conduct Trademark Research in the form of a Trademark Clearance Report prior to adopting and beginning use of your new trademark.
1. U.S. Patent and Trademark Office (“USPTO”) Filing Fees Are Non-Refundable
First and foremost filing fees paid to the USPTO are non-refundable. In other words, if you file for your mark and your mark is ultimately block based upon a likelihood of confusion with an existing mark you have forfeited the cost of your filing fees paid to the USPTO in the filing of your Trademark Application.
A trademark clearance report, even one as simple as a Basic Federal Database Search which costs a fraction of what it costs to file for protection of a trademark with the USPTO, is often a cost-effective method to evaluate whether your mark is clear to be registered and, if so, whether you should proceed forward with filing for the Trademark Registration or decide upon another mark if the same is not available.
2. Don’t Develop a Brand You May Be Forced to Give Up
Second, a Comprehensive U.S. Trademark Research Report – one that includes a search of not only the USPTO’s databases but also state trademark and corporate databases – will not only let you know if your trademark is clear to registered but also whether you are likely to infringe upon another’s use of an already-existing trademark whether it be filed with the USPTO or not.
Note, trademarks are not required to be registered with the USPTO to be afforded protection state and federal protection. Rights to trademarks can be acquired merely by use thereof or what is generally referred to as at common law.
So imagine the scenario, you are a California restaurateur. You come up with what you think is a unique name, let’s say Suntopia. You open your first restaurant in Los Angeles. Since you came up with the name you figure it must be available so no research report is performed. Business is great. You open a second location in Palm Springs and later a third in Las Vegas. You register the trademark with the USPTO and life is good. A few years go by and you are now famous. Your restaurants are the toast of the town. You routinely appear on the Jay Leno show as a celebrity guest chef. And then one day you get a letter from a law firm in Florida. The letter reads “Dear so in so ... our client has been using the mark Suntopia in connection with a chain of restaurants in the States of Florida and Georgia for over twenty years. We demand you immediately change your name. P.S. Loved you on Leno. The pesto-encrusted sea bass was great.”
You’re crushed. How could this be? You came up with the mark in a dream sequence fit for a Hollywood film. This must be your trademark.
Sadly who wins? More likely than not the Flori-Georgians. Who looses? You do. What happens to the years of blood sweat and tears building your brand Suntopia? Gone. And to think, all of this could have been resolved if only you would have spent a few dollars up front and had a trademark clearance report performed. Then you would have known to come up with another mark instead of spending years of your life and countless resources building up another’s pre-existing brand.
After all, as most practitioners and entrepreneurs know alike, it is the enterprise that creates the brand. The brand does not create the enterprise.
3. Having a Trademark Clearance Report Performed Is Evidence of Your Reasonableness in Adopting a Trademark
Third, did you know that should you ever get sued for trademark infringement the fact that you had a clearance report issued which cleared the adoption and use of your mark may be used as evidence in that case as evidence of your reasonableness in adopting the mark.
Trademark litigation counsel love it when an accused infringer did not perform a trademark clearance report. In the hands of a skilled lawyer this can be manipulated into showing a callous disregard as to the existing trademark rights of others by the purported infringing defendant.
But if you have a trademark clearance report performed, and if that report “clears” use of your mark, the opposite may be true. Should you ever be sued over the use of the trademark your lawyer can mount a defense on the reasonableness of your selection of the mark backed by objective evidence at or before the critical point of adoption of the mark: your trademark clearance report.
Conclusion
So whenever considering the adoption of a new trademark, be you a small start-up business or a multinational corporation rolling out new product after new product, remember to always have a trademark clearance report performed before you begin use of your mark. It is well worth the investment.
The Trademark Company
Monday, July 19, 2010
5 Reasons Why You Should Register Your Trademarks with the U.S. Patent and Trademark Office
We are often asked by our customers why should I register my trademark? Isn’t it true that I can begin use of my trademark without a registration?
The answer may come as a surprise to some but this is, in fact, true. You do not need to register your trademark to use the same to identify your goods or services.
However, before dismissing registering your trademark consider the value and protection afforded by a Federal Trademark Registration for a relatively modest price.
A Federal Trademark Registration provides:
1. Constructive notice nationwide of the trademark owner's claim.
Notice is one of the biggest issues in trademark law. When a lawsuit arises or a claim of infringement one of the issues which must always be addressed is whether the alleged infringing party was on notice of the trademark owner’s rights. By statute, a Federal Trademark Registration provides that everyone in the United States is on notice of rights retained by owners of Federal Trademark Registrations.
2. Evidence of ownership of the trademark.
Often challenges can arise as between parties concerning rights in competing trademarks. Those who have had the foresight to have their trademarks registered almost always retain the upper hand in such conflicts as retaining a Federal Trademark Registration is significant evidence that the trademark holder retains rights in the mark it alleges to own.
3. Jurisdiction of federal courts may be invoked.
From time to time Trademark Enforcement and Trademark Defense disputes may arise to the point that litigation is involved. Owners of Federal Trademark Registrations enjoy the benefit of being able to bring their disputes in Federal District Courts throughout the country.
4. Registration can be used as a basis for obtaining registration in foreign countries.
The United States is now a signatory to the Madrid Protocol. The treaty permits the owners of Federal Trademark Registration(s) to easily extend their U.S. rights to receive International Trademark Registration(s) in more than 78 countries around the world.
5. Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign goods.
Lastly, an owner of a Federal Trademark Registration can file the same with the U.S. Customs and Border Protection (“USCBP”) and have the USCBP stop infringing goods from ever entering the country.
Conclusion.
So do you need to register your trademark, no. But given the cost, it is one of the best investments in your brand you will ever make.
The Trademark Company
The answer may come as a surprise to some but this is, in fact, true. You do not need to register your trademark to use the same to identify your goods or services.
However, before dismissing registering your trademark consider the value and protection afforded by a Federal Trademark Registration for a relatively modest price.
A Federal Trademark Registration provides:
1. Constructive notice nationwide of the trademark owner's claim.
Notice is one of the biggest issues in trademark law. When a lawsuit arises or a claim of infringement one of the issues which must always be addressed is whether the alleged infringing party was on notice of the trademark owner’s rights. By statute, a Federal Trademark Registration provides that everyone in the United States is on notice of rights retained by owners of Federal Trademark Registrations.
2. Evidence of ownership of the trademark.
Often challenges can arise as between parties concerning rights in competing trademarks. Those who have had the foresight to have their trademarks registered almost always retain the upper hand in such conflicts as retaining a Federal Trademark Registration is significant evidence that the trademark holder retains rights in the mark it alleges to own.
3. Jurisdiction of federal courts may be invoked.
From time to time Trademark Enforcement and Trademark Defense disputes may arise to the point that litigation is involved. Owners of Federal Trademark Registrations enjoy the benefit of being able to bring their disputes in Federal District Courts throughout the country.
4. Registration can be used as a basis for obtaining registration in foreign countries.
The United States is now a signatory to the Madrid Protocol. The treaty permits the owners of Federal Trademark Registration(s) to easily extend their U.S. rights to receive International Trademark Registration(s) in more than 78 countries around the world.
5. Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign goods.
Lastly, an owner of a Federal Trademark Registration can file the same with the U.S. Customs and Border Protection (“USCBP”) and have the USCBP stop infringing goods from ever entering the country.
Conclusion.
So do you need to register your trademark, no. But given the cost, it is one of the best investments in your brand you will ever make.
The Trademark Company
Friday, July 16, 2010
The Trademark Company Finalizes Move to New State-of-the-Art Facility
CARY, NC --(July 16, 2010) - Today The Trademark Company announced the completion of its move into its new state-of-the-art facility in Cary, North Carolina.
“In 2003 we founded The Trademark Company to build a better customer-focused firm with affordable trademark representation for all” provided Matthew Swyers, founder of The Trademark Company. “Today we move forward into our new facility that will assist us in further effectuating the top-flight trademark services with world-class customer service our organization is renowned for.”
Under planning for years and construction for months the facility will house the core of the business while providing an innovative and unique workspace for The Trademark Company’s employees.
“Think Google or Ebay meets the law” Mr. Swyers stated. “In building a great company it is our goal to attract only the best in the business. To that end, we constructed this facility so that from a physical perspective we can be as great of a place to work as we are from other perspectives.”
Of course it’s not all about the giant green walls, circular windows, espresso machines, balloon lights, and conference rooms with wing-shaped light fixtures.
If you want to know what really is special about the facility you have to check under the hood. “We’ve constructed one of the most technologically advanced offices in our industry. The continued reinvestment in our infrastructure allows us to better serve our customers like never before. And, of course, that is our principle focus” added Mr. Swyers.
A former trial lawyer and examining attorney with the U.S. Patent and Trademark Office, Mr. Swyers helped found The Trademark Company to address a significant need then lacking for entrepreneurs and small businesses – affordable Trademark Registration and related legal services for all.
For more information on Mr. Swyers and The Trademark Company please visit www.TheTrademarkCompany.com.
The Trademark Company
“In 2003 we founded The Trademark Company to build a better customer-focused firm with affordable trademark representation for all” provided Matthew Swyers, founder of The Trademark Company. “Today we move forward into our new facility that will assist us in further effectuating the top-flight trademark services with world-class customer service our organization is renowned for.”
Under planning for years and construction for months the facility will house the core of the business while providing an innovative and unique workspace for The Trademark Company’s employees.
“Think Google or Ebay meets the law” Mr. Swyers stated. “In building a great company it is our goal to attract only the best in the business. To that end, we constructed this facility so that from a physical perspective we can be as great of a place to work as we are from other perspectives.”
Of course it’s not all about the giant green walls, circular windows, espresso machines, balloon lights, and conference rooms with wing-shaped light fixtures.
If you want to know what really is special about the facility you have to check under the hood. “We’ve constructed one of the most technologically advanced offices in our industry. The continued reinvestment in our infrastructure allows us to better serve our customers like never before. And, of course, that is our principle focus” added Mr. Swyers.
A former trial lawyer and examining attorney with the U.S. Patent and Trademark Office, Mr. Swyers helped found The Trademark Company to address a significant need then lacking for entrepreneurs and small businesses – affordable Trademark Registration and related legal services for all.
For more information on Mr. Swyers and The Trademark Company please visit www.TheTrademarkCompany.com.
The Trademark Company
Tuesday, July 13, 2010
5 Things Every Business Should Know About Trademarks
We are often asked what is a trademark, do I have to register it before I use it, and other rather straightforward questions about mark usage in the U.S. and abroad. In our experience here are five (5) simple facts every business owner should know about trademarks:
1. What is a Trademark?
A trademark includes any word, name, symbol, or device used in commerce to identify the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name such as Coca-Cola® for beverages, the Nike swoosh for shoes, and FedEx® for package delivery services.
2. Can I Reserve a Trademark Before I Use It?
Yes. A trademark can be "reserved" with the U.S. Patent and Trademark Office by filing an Intent-to-Use Application for the trademark. Although an Intent-to-Use Application requires additional paperwork to be filed during the Registration Process, it permits persons to reserve a trademark for future use while their business, brand, or product line is developed.
3. Should a Trademark Search Be Performed to Make Sure my Trademark is Available Before I File an Application to Register the Trademark or Begin Use Thereof?
Yes, although a search is not required. Trademark Research allows you to verify that your proposed mark is not in use by another and is available for you to use.
4. Do I Have To Register a Trademark to Use a Trademark?
No. However, federal registration has several key advantages which make it important to obtain a registration especially to Enforce a Trademark and preclude others from using your mark or similar marks thereto. A federal trademark registration provides:
* Constructive notice nationwide of your claim of ownership of a trademark;
* Evidence of ownership of the trademark;
* Jurisdiction of federal courts to Enforce a Trademark may be invoked;
* Registration can be used as a basis for obtaining Registration in Foreign
Countries;
* Registration may be filed with U.S. Customs Service to prevent importation of
infringing foreign goods.
5. Is a U.S. Federal Registration Valid Outside the U.S.?
A U.S. Federal Registration only protects your mark here in the U.S. However, any trademark owner with an application filed in or a registration issued by the U.S. Patent and Trademark Office can extend protection of that trademark into over 71 other countries through a treaty known as The Madrid Protocol.
The Trademark Company
1. What is a Trademark?
A trademark includes any word, name, symbol, or device used in commerce to identify the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name such as Coca-Cola® for beverages, the Nike swoosh for shoes, and FedEx® for package delivery services.
2. Can I Reserve a Trademark Before I Use It?
Yes. A trademark can be "reserved" with the U.S. Patent and Trademark Office by filing an Intent-to-Use Application for the trademark. Although an Intent-to-Use Application requires additional paperwork to be filed during the Registration Process, it permits persons to reserve a trademark for future use while their business, brand, or product line is developed.
3. Should a Trademark Search Be Performed to Make Sure my Trademark is Available Before I File an Application to Register the Trademark or Begin Use Thereof?
Yes, although a search is not required. Trademark Research allows you to verify that your proposed mark is not in use by another and is available for you to use.
4. Do I Have To Register a Trademark to Use a Trademark?
No. However, federal registration has several key advantages which make it important to obtain a registration especially to Enforce a Trademark and preclude others from using your mark or similar marks thereto. A federal trademark registration provides:
* Constructive notice nationwide of your claim of ownership of a trademark;
* Evidence of ownership of the trademark;
* Jurisdiction of federal courts to Enforce a Trademark may be invoked;
* Registration can be used as a basis for obtaining Registration in Foreign
Countries;
* Registration may be filed with U.S. Customs Service to prevent importation of
infringing foreign goods.
5. Is a U.S. Federal Registration Valid Outside the U.S.?
A U.S. Federal Registration only protects your mark here in the U.S. However, any trademark owner with an application filed in or a registration issued by the U.S. Patent and Trademark Office can extend protection of that trademark into over 71 other countries through a treaty known as The Madrid Protocol.
The Trademark Company
Friday, July 9, 2010
IP Law 101: A Start-Up's Guide to Intellectual Property
We are often asked do I need a trademark for my slogan? Can I patent my idea? How can I protect my website from copying by others? Here’s a quick rundown of the various protections every business should be aware of in protecting their intellectual property.
Trademarks
A trademark includes any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods or services of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name. It can be your company’s name (e.g., NIKE) or its main advertising slogan (e.g., JUST DO IT). No matter what you wish to use as a source identifier of your goods or services it should be Registered, if possible, with the U.S. Patent and Trademark Office (“USPTO”) to maximize the protection available under The Trademark Act of 1946. Trademarks can last forever so long as they are Renewed as required by the USPTO.
Patents
A patent is a grant of property rights by the U.S. Government through the USPTO. The patent grant excludes others from making, using, or selling an invention in the United States that receives patent protection (e.g., a new and innovative design for a tooth brush, mechanical part, or otherwise). Patents, unlike trademarks, are subject to limits lives. For instance, a utility or plant patent in force on June 8, 1995, is subject to either the 17 year term from grant or the 20 year term from earliest effective U.S. filing date, whichever is longer. A design patent term is 14 years from patent grant.
Copyrights
Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. Copyrightable works include the following categories:
1. Literary Works (e.g., books, articles)
2. Musical Works, including any accompanying words (e.g., music, lyrics)
3. Dramatic Works, including any accompanying music (e.g., plays, screen
plays,scripts)
4. Pantomimes and Choreographic Works (e.g., dance routines)
5. Pictorial, Graphic, and Sculptural Works (e.g., works of art, statutes, AND
web sites)
6. Motion Pictures and other Audiovisual Works (e.g., movies, television
broadcasts)
7. Sound Recordings (e.g., albums, CDs, etc.)
8. Architectural Works (e.g., building designs and plans)
As always, if you have any questions about these or any other matters just Contact Us or post your questions or comments right here on our blog.
The Trademark Company
Trademarks
A trademark includes any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods or services of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name. It can be your company’s name (e.g., NIKE) or its main advertising slogan (e.g., JUST DO IT). No matter what you wish to use as a source identifier of your goods or services it should be Registered, if possible, with the U.S. Patent and Trademark Office (“USPTO”) to maximize the protection available under The Trademark Act of 1946. Trademarks can last forever so long as they are Renewed as required by the USPTO.
Patents
A patent is a grant of property rights by the U.S. Government through the USPTO. The patent grant excludes others from making, using, or selling an invention in the United States that receives patent protection (e.g., a new and innovative design for a tooth brush, mechanical part, or otherwise). Patents, unlike trademarks, are subject to limits lives. For instance, a utility or plant patent in force on June 8, 1995, is subject to either the 17 year term from grant or the 20 year term from earliest effective U.S. filing date, whichever is longer. A design patent term is 14 years from patent grant.
Copyrights
Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. Copyrightable works include the following categories:
1. Literary Works (e.g., books, articles)
2. Musical Works, including any accompanying words (e.g., music, lyrics)
3. Dramatic Works, including any accompanying music (e.g., plays, screen
plays,scripts)
4. Pantomimes and Choreographic Works (e.g., dance routines)
5. Pictorial, Graphic, and Sculptural Works (e.g., works of art, statutes, AND
web sites)
6. Motion Pictures and other Audiovisual Works (e.g., movies, television
broadcasts)
7. Sound Recordings (e.g., albums, CDs, etc.)
8. Architectural Works (e.g., building designs and plans)
As always, if you have any questions about these or any other matters just Contact Us or post your questions or comments right here on our blog.
The Trademark Company
Thursday, July 8, 2010
Domain Name Fraud Alert
Just this morning we received another inquiry from one of our customers concerning possibly fraudulent activities by purportedly reputable Asian Domain Name Registrars. So again we would remind everyone of this scam which has been going on for over a year.
Purportedly reputable domain name registrars from Honk Kong and other Far East countries have been using a scheme for about the last 18 months to drum up domain name registrations among U.S. Trademark holders.
Here's how it works. U.S. Trademark registrants receive an email from a domain name registrar reporting that they, the domain name registrar, has received an order to register domain names with various TLDs corresponding to the registrant’s registered U.S. Trademarks.
The registrar then reports to the registrant that in searching the U.S. Patent & Trademark Office’s records they “discovered” that the domain names to be registered are identical or highly similar to the trademark holder’s marks.
The registrar then offers the trademark holder the option to register the domain names before the other party does. Unsuspecting trademark holders take the registrar up and register multiple domain names under this veiled threat often for U.S. $50 to U.S. $100 per domain name per year.
In reality this is, at best, a hard marketing sale. At worst, it is a complete scam.
The genius of the plan is that if due diligence is conducted the alleged company referenced in the domain name registrar’s email as the entity which is about to register the domain names actually exists. So the trademark holder believes that their may be an actual threat to their marks.
We, in conjunction with some of our friends in Washington, D.C. mega-law firms, coordinated to spot this fraud and now are trying to get the word out. Having now witnessed this scam hundreds of times all should be advised that this routine is just a hard sell and U.S. Trademark holders should be aware of this fact before rushing to register such domain names under such an artificial threat.
The Trademark Company
Purportedly reputable domain name registrars from Honk Kong and other Far East countries have been using a scheme for about the last 18 months to drum up domain name registrations among U.S. Trademark holders.
Here's how it works. U.S. Trademark registrants receive an email from a domain name registrar reporting that they, the domain name registrar, has received an order to register domain names with various TLDs corresponding to the registrant’s registered U.S. Trademarks.
The registrar then reports to the registrant that in searching the U.S. Patent & Trademark Office’s records they “discovered” that the domain names to be registered are identical or highly similar to the trademark holder’s marks.
The registrar then offers the trademark holder the option to register the domain names before the other party does. Unsuspecting trademark holders take the registrar up and register multiple domain names under this veiled threat often for U.S. $50 to U.S. $100 per domain name per year.
In reality this is, at best, a hard marketing sale. At worst, it is a complete scam.
The genius of the plan is that if due diligence is conducted the alleged company referenced in the domain name registrar’s email as the entity which is about to register the domain names actually exists. So the trademark holder believes that their may be an actual threat to their marks.
We, in conjunction with some of our friends in Washington, D.C. mega-law firms, coordinated to spot this fraud and now are trying to get the word out. Having now witnessed this scam hundreds of times all should be advised that this routine is just a hard sell and U.S. Trademark holders should be aware of this fact before rushing to register such domain names under such an artificial threat.
The Trademark Company
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