Free Trademark Search - Is it Possible to Search my Trademark for Free?

Yes and no is really the only way to answer this question. While there are some great preliminary sites anyone can access for free, that is NOT a clear cut indication of what's out there in terms of company names, service names or product names.

Only comprehensive research will tell you if a name is truly available.

Let's take a look at some free, preliminary sites and where they fail to be comprehensive:

• The USPTO Web Site: You'll be able to search some of the Federal trademark files at this site.

  What it's missing: State trademarks; Common-Law databases such as incorporation listings, DBA records, company directories, newspapers, product announcements, etc.

  What it lacks: Does NOT search intelligently (i.e. synonyms, spelling variations, word placement, etc.) unless you manually enter in those variations

• Your Secretary of State web site: Your state may have an online searchable database.

  What it's missing: Federal trademarks; All other State trademark listings; Common-Law databases

  What it lacks: Provided that your state does have a searchable database, you'll want to be sure to check how often it's updated and if it searches intelligently

• Yellow pages: SuperPages allows users to search nationwide. Simply enter the business name & leave the other fields blank.

  What it's missing: Federal AND State trademarks; Common-Law databases

  What it lacks: Does NOT search intelligently (i.e. synonyms, spelling variations, word placement, etc.) unless you manually enter in those variations

Take advantage of these free resources before hiring an attorney or private company to conduct a thorough search.

Yes, you can search your business name for free - just know that it's not comprehensive!

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 TradeMark Express or call Shannon directly at 800.340.2010.

What Is A TradeMark And Why Should I Have One?

The short answer to this question is that a trademark can become a brand. Even if you're business is local, a brand name is important not only from a marketing but also a customer perception basis.

When many people think government business registration documents, they naturally think patents. General copyrights which establish ownership of certain types of property like writings, music etc. Trademark registration however is used to establish ownership rights to a specific design, character, lettering style or combinations and of all these into 1 single general identifying mark.

Good examples of Trademarked products would be the NIKE swoosh or McDonalds Golden Arches. These trademarked designs are readily identifiable with the company using them. Trademarks, Servicemarks and other official registrations are good because they establish ownership. That is, you simply could not open up a fast food restaurant and use the McDonalds

If you're considering a trademark, the first thing to do is a quick check to make certain what you want to register is even available.

There are many trademarks of obscure companies that may be similar enough to your idea to create confusion and a potential problem. This research can be done by several methods including the use of a patent and trademark attorney. A better approach, especially if you're a small company or one starting out, is to simply contact the federal government and request information on the process steps. The first stop on your journey should be http://www.uspto.gov to get the latest information and process to follow.

Be advised that the federal government is pushing for paperless transactions whenever possible. Their current fees to process a trademark application is 325 dollars if filed electronically. If you prefer to file the application with physical paper

In addition to the application and fee, a drawing must be presented showing your design and proposed trademark. You should also be prepared to have examples of how you're using the proposed trademark - Servicemarks currently in your business. If approved, you will then have the exclusive ownership of that particular design.

The benefits of having an easily recognizable Servicemarks cannot be denied. Go anywhere around the world and even if you cannot read the language, a familiar red can with silver ribbons will announce and identify the drink in the container as Coke, the real thing! How much more valuable would your business be if you had a service mark as distinctive and as easily recognizable as a can of Coca-Cola?

Abigail Franks writes on a variety of subjects which include family, travel, health, and business. For More information on Trademarks visit the site at http://www.trademarks.openbriefcase.com

Trademarks: When and How to Search and File Trademark Applications

A trademark can be any word, slogan, design, symbol, or even a color, smell, product configuration or a combination of these, used to identify the source of origin of particular goods and services.  The trademark serves as a source identifier of your goods and services, to distinguish it from the goods and services of others. 

1.                  What is a Trademark?

A trademark can be any word, slogan, design, symbol, or even a color, smell, product configuration or a combination of these, used to identify the source of origin of particular goods and services.  The trademark serves as a source identifier of your goods and services, to distinguish it from the goods and services of others.  For example, Nike? has a registered trademark with the United States Patent and Trademark Office (?USPTO?).  Their mark is used to distinguish their goods and services over other shoe companies.  Nike? actually owns several trademarks, including design marks as well, such as their swoosh symbol. 

Here is another example, remember when Paris Hilton was saying ?that?s hot? everywhere?  She applied for a trademark application with the USPTO.  If it ultimately gets issued, it doesn?t mean that no one else can ever say that phrase.  Ms. Hilton?s trademark attorney has filed the slogan only in connection with particular specified goods and services.  Therefore, if the mark does ultimately issue, she will have federal rights to prevent others from using the mark in connection with the same or similar goods and services she registered the mark with. 

2.                  Why You Need to Conduct a Trademark Search and File an Application

You are ready to launch a new product, or you are about to start a new business and you have a great name you?ve been wanting to use for years.  But can you?  Here is a typical scenario: Company A opens its doors (a physical store and online) choosing a name without conducting a trademark search.  Company A starts promoting its name by investing in advertisements (print and online such as Google adwords).  Months go by and Company A is doing quite well financially, has invested a lot money in advertising and marketing, and its page ranking in Google and went up considerable for its desired terms (after spending a ton of money to search engine optimization marketing firms).  Then one day, Company A receives a cease and desist letter from Company B?s attorney similar to this:

Company B is the owner of United States Federal Trademark Registration No. XX and other trademark registrations pertaining to this mark.  Company B uses this mark in the United States in conjunction with its goods and services.  Company B legally owns the trademark upon which your online store, products, and advertisement are infringing.

Company B believes that you are intentionally trading on the goodwill of Company B by using a trademark that is confusingly similar to Company B?s Trademark and that your use of the Trademark does, or is intended to confuse or mislead customers seeking Company B?s products or services. This activity is actionable under federal law and causes you to be liable to Company B in every state in which you have made sales or done business. Your activities are unlawful and constitute unfair competition, intentional trademark infringement and dilution, false designation of origin and/or cybersquatting.

Federal Law provides numerous legal remedies for trademark infringement and dilution, including, but not limited to, preliminary and permanent injunctive relief, monetary damages, claim to a defendant?s profits?

So now what?  You are thinking it can only be a bad dream, I can?t stop using the name I?ve been using all this time.  Think again.  Although you may be able to fight  or settle in order to prevent your name from being taken away, it typically takes time and a lot of money.  This is the sad scenario many business owners face when the neglect to take into account intellectual property rights of others.

Rather than being a victim to bad business practices, the proper way to proceed is to obtain a trademark search on each and every name you intend to use in connection with the goods and services your business is promoting.  A competent trademark attorney can conduct the search and analyze the results to advise you whether or not you should use the name.  If name appears to be clear, then it is advisable to proceed with your own application for a trademark in order to serve as a defense and to be used offensively against would be trademark infringers. 

Upon issuance of your federally registered trademark, you have the following significant benefits:

• Nationwide constructive notice of trademark ownership
• Evidence of and a presumption of ownership
• Federal court jurisdiction (should you have to sue to prevent infringement)
• Federal registration can be used to obtain foreign registration
• The registration may also be filed with U.S. Customs Service to prevent importation of foreign goods that infringe on the trademark

3.                  Trademark Issues on the Internet

What about domain name disputes; use of trademarks in Google adwords advertising or banner advertisements; cybersquatting; how about protect, parody, or criticism websites like www.starbucked.com; trademark issues with pop up ads; etc.  These are all issues that occur everyday online and are costing business owners millions.  Each issue can be resolved in different ways, either by the use of cease and desist letters; negotiations and settlement; a traditional trademark infringement lawsuit in either federal or state court; an Anticybersquatting Consumer Protection Act (ACPA) lawsuit; or an Uniform Domain Name Dispute Resolution Policy (UDRP) proceeding. 

? 2006 Michael N. Cohen, Esq.  No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.

This article is not intended as a substitute for legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws.

Michael N. Cohen, Esq. is an intellectual property attorney with specializations in trademark, patent and internet law.  The Law Office of Michael N. Cohen, P.C., is located in Beverly Hills, California, and Mr. Cohen can be contacted at 310-288-4500 or http://www.patentlawip.com.

 

Trademark Infringement Issues For Pay-per-Click (PPC) Advertisers

Trademark infringements occur when companies bid on the brand names of their competitors. This results in the company's ads appearing under searches for the competitor's brand. What can you do to protect yourself from trademark infringement?

Yahoo has just announced they will no longer allow PPC advertisers to advertise or bid on trademarked terms.

Could this be a trend of things to come from the other major search players?

MSN's new adCenter (still in beta) states you are not allowed to infringe trademarks within their editorial guidelines (see policy below).

However, Google still maintains a strong stance in allowing advertisers to bid on trademarked search terms as long as the trademarked term is not used within the advertiser's ad-copy.

Numbers to Consider Next to click fraud, trademark violations are the second largest concern to Pay-Per-Click (PPC) advertising. Out of the total number of searches online, 20% are trademark searches. Meaning, company owned trademarks such as "Pontiac", account for 20% of all search traffic. While 1 in 5 searches for trademark terms may seem high, most conversions do not originate from trademarked terms. A study by comScore and Yahoo Search Marketing (Overture) found most buyers do not search by manufacturer or product name. Rather, buyers use broad search terms that do not include a manufacturer's name. Broad search terms account for 70% of total searches and 60% of total conversions.

Search Engine's Policy on PPC Trademark Bidding

Yahoo on Trademarks: "On March 1, 2006, Yahoo! Search Marketing will modify its editorial guidelines regarding the use of keywords containing trademarks. Previously, we allowed competitive advertising by allowing advertisers to bid on third-party trademarks if those advertisers offered detailed comparative information about the trademark owner's products or services in comparison to the competitive products and services that were offered or promoted on the advertiser's site.

In order to more easily deliver quality user experiences when users search on terms that are trademarks, Yahoo! Search Marketing has determined that we will no longer allow bidding on keywords containing competitor trademarks."

MSN AdCenter on Trademarks "Microsoft requires all advertisers to agree that they will not bid on keywords, or use in the text of their advertisements, any word whose use would infringe the trademark of any third party or would otherwise be unlawful or in violation of the rights of any third party".

Google Adwords on Trademarks: "Google takes allegations of trademark infringement very seriously and, as a courtesy, we're happy to investigate matters raised by trademark owners. Also, our Terms and Conditions with advertisers prohibit intellectual property infringement by advertisers and make it clear that advertisers are responsible for the keywords they choose to generate advertisements and the text that they choose to use in those advertisements."

Solution or More Problems With all Engines moving toward a TM standard, it would have many benefits to both advertisers and searchers. This standard would be good for marketers who would have to be more creative in their copy creation creating increased demand for qualified marketers which would translate into higher fees. Search Engines hosting the ads would maintain revenue levels, but online public relations firms may lose as they would not be required to police search engines for their clients with trademarks. Lastly, the mark owner would continue to be protected and user experience would not be affected.

Case Study: I'm currently working with an AdWords client in a circumstance where their competitors are bidding on their trademarked search terms. Aside from the constant policing and reporting for trademark violations used in the ads themselves, adspend to secure top positions for their ads has skyrocketed from an initial $2.00 per click to $15.00 per click. Additionally, monthly spend has increased from $1,200 to nearly $30,000.

I have to go back to my client with an estimated budget of $500,000 for the rest of this year to control the space for their own branded trademarked term. I am reluctant to do that as it doesn't make sense with the announcement from Yahoo on their new trademark policy. Given the level of aggression by the competitors and the extortionate cost now been borne by my client there is only one solution and that is to stop all advertisers from bidding on the terms. In my opinion, it is simply not right that a business owner has to spend $500,000+ to buy their own branded term that has already cost them millions of dollars to build. This is $500,000+ in revenue for Google which is being generated by a policy that is beyond elementary business terms. Yahoo and MSN have recognized the injustice of this policy and have taken steps to change it.

If we cannot treat this policy on a case by case basis, then I have no alternative than to advise my client that we cannot help them any further and their only option is to resort to legal action against Google.

Google also advises that you take the matter up with individual advertisers which in many cases are impossible with private registrations and foreign companies. You could add to your high costs dramatically to have to send cease desists to all infringers. Many will ignore you.

The classic bait and switch does not seem to apply to the Internet. Many companies are okay with their terms being bought for comparison shopping and by re-sellers. The solution here is for those companies to give permission to Google to allow their re-sellers to purchase the name. With the strength and sophistication of Google's technology how difficult can this be? I doubt it is any more cumbersome than filtering search results for China.

Your Defense Against Trademark Violations Website companies where the majority of their revenue is generated through online sales depend heavily on search engines to generate traffic to their website. In order to defend against trademark infringements you will need to conduct search audits at least once every month. You not only need to look over organic search results, but also paid search results or PPC contextual ads. You should look through the top 30 results of the search listings.

For organic search engine results you should look at both the questionable result and the site displayed in the result. When looking over the possible violator's site, don't just look over the visible content on the site; look over the code as well to uncover hidden text, image alt tags and keyword meta tags that may include your trademarked names.

Then document your findings. For search engine results and PPC results use a "screen capture" of the page displaying the mark infringement. For mark infringements that are visible on a website, save the entire page's code as a .txt file.

What about if you are you seeing an infringement in organic search results, but when you click on the page, there is no infringement? They may be using a cloaked page which includes your trademark. To check this out you will need to view the search engine's cached page on file. Make sure to save a copy of this code as well.

You will need to document your findings properly by dating the violation as well as the site owner's complete contact information. Use http://www.dnsstuff.com to get the whois information for the site. Once you have all of this documented you will need to send your findings to the appropriate search engine.

You may also want to take the legal route, in which case you should keep a record of all your documentation to present to your legal counsel.

The best way to gather evidence is to hire a third party to collect evidence against the infringer of your trademark or copyrighted material. Recently at Search Engine Strategies in New York City during February of 2006, Deborah Wilcox, Partner of Baker & Hostetler LLP who specializes in trademark and copyright areas of law said, "Use a third party to make print outs and audit the search results. If the case goes to court you will need hard evidence for the judge."

Contact the Search Engines You can also contact the search engines directly if you believe an advertiser is infringing on your trademark. The respective search engine contact information is below.

Google Google Inc. Attn: Google AdWords, Trademark Complaints 2400 Bayshore Parkway Mountain View, CA 94043

Yahoo! Search Marketing Formerly: Overture Services, Inc. Attn: Business & Legal Affairs - Trademarks 74 N. Pasadena Ave., 3rd Floor Pasadena, California 91103 Fax: 626 685-5601

Microsoft Corporation Attn: MSN Search Trademark Concerns One Microsoft Way Redmond, WA 98052 USA

Trademark Infringement Resources International Trademark Association www.inta.org American Patent & Trademark Law Center www.patentpending.com

Warren Pattison is the Director of Search for Elixir Systems, a full service search engine marketing company specializing in organic search engine optimization services, online reputation management and paid search or PPC management. For more information visit http://www.elixirsystems.com/services/online-reputation-management.php

Yahoo to Prohibit Competitive Keyword Bids Containing Trademarks

Yahoo Search Marketing (searchmarketing.yahoo.com) has recently announced its advertisers of a new policy to be implemented as of March 1st 2006, concerning the use of trademarks within their products and services *.

Under the new policy, no reference to a trademark can be made (except for ads placed by the trademark owners themselves, obviously), and consequently no bids can be make for keywords containing such trademarks. Exceptions refer to usage of trademarks in non-competitive ads, such as those made by re-sellers, or in informative (and still non-competitive) ads.

The previous policy allowed references to competitors' trademarks and comparisons as long as they were "objective and informative" - the formulation makes me cringe, as it is clearly troublesome trying to evaluate one's objectivity when speaking of business competitors. As for the "informative" side of it... the probability for someone to actually PAY for an ad to be informative of someone else's product/service, that's as believable just like the existence of Santa Claus.

It is really good to see Yahoo making a big step forward in regulating abuse and misuse of trademarks, even though that probably translates in some revenue loss for them, by having certain advertisers migrate to a "friendlier" place such as Google. According to Google's policies, "[...] advertisers may select trademarked terms as keywords or use them in the content of the ad. As a provider of space for advertisements, Google is not in a position to arbitrate trademark disputes between advertisers and trademark owners. As stated in our Terms and Conditions, advertisers are responsible for the keywords and ad text that they choose to use. Accordingly, Google encourages trademark owners to resolve their disputes directly with the advertiser, particularly because the advertiser may have similar ads on other sites. However, as a courtesy to trademark owners, Google is willing to perform a limited investigation of reasonable complaints."

The question is why would Yahoo change its policies and apparently offer Google an even bigger bite from the SEM cake? It is way too early to say now, and their official explanation is not entirely believable: Yahoo states to have had the users' best interest in mind, by providing them with a better experience when searching terms that contain trademarks. Though this would make a laudable initiative with a good PR potential, experts know the search market is driven by large publishers and advertisers and not by the little surfing guys. Numerous speculations can be made: threats of large legal actions from trademark owners, pressure from certain groups of interests are among the most vehiculated ones. However, a more plausible one is that Yahoo makes preparations for a much larger scale movement destined to influence the market in a manner we cannot anticipate just yet.

Until further industry news, there's one thing to rejoice: from now on, no "better than Botox" ads on Yahoo and their partner sites!

* - the products and services covered by the new policy are: Sponsored Search, Local Advertising, Search Submit, Product Submit, Travel Submit and Directory Submit.

Otilia is a young certified professional with expertise in e-Marketing and e-Business, currently working as independent consultant and e-publisher. She has recently launched MarketingWHO.com, a professional Marketing Directory and blogs at The Marketing Journal.

Legal issues about Trademarks and Domain Names

Trade marks are a name or symbol that are used to distinguish the goods of services of a particular company from others.

Similar to copyrights and other signs of intellectual property, the effects of the trademark system is territorial. This means, that each country has its own trademark system. A brand name like Machine Head may be owned by one person in the United Kingdom and by another, totally unrelated, person in the United States.

The domain name system, which is putting most of its emphasis on the .com title as the international domain, does not really jive well with the trade mark system because of the latter's fundamental definition of "ownership."

A case in point is the Prince vs Prince suit. Prince, the US-based manufacturers of sports goods, challenged the use of the www.prince.com domain name by a British computer consultancy company. The said company registered the domain in good faith and have been using it. The Prince sports goods company, which has no registered UK trademark, threatened to sue the British company for US trademark infringement. The latter counter-sued in the UK for the unwarranted threats regarding trademark infringement. They eventually won and the US company had to contend with just using the domain name www.princetennis.com.

Alternatively, a different scenario where the trademark owner will most likely prevail over a domain name holder's rights is in the case of Marks & Spencer vs One in a Million. This particular case was elevated to the English High Court in 1997 when various trademark holders, including the world-famous UK retailer Marks & Spencer, sued One In A Million, a company who accumulated a number of domain names under the well-known trademarks like Sainsburys, Virgin, Marks & Spencer, and Cellnet. These domain names, and others, were bought with the express goal of selling them again to the trademark owners. The High Court decided that One In A Million be required to relinquish their claim on the said domain names. This decision was further upheld by the Court of Appeal.

The One In A Million company's basis of argument was that domain name registrations were first come, first served", thus, the trademark owners do not have any rights to the domain names.

Based on the two actual court cases we can build up a clear picture about the interrelation of trademarks and domain names.

In general, domains that have no trademark significance can be acquired by the entity who registered them first. Continuous use of this non-trademarked name will allow the holder to build a reputation on the name. When the situation is between to legitimate companies who have a right to the name then, as with the stipulation of most laws in most countries, the first person who registers will get the domain. However, a registrant to a domain that is also a subject of a trademark and who does not have any entitlements is going to be forbidden based on the laws of most countries. For more information please visit http://www.dolphinformations.co.uk

What Is Trademark Law

Trademarks can be anything from words, phrases, logos, symbols, or slogans, anything that will identify or distinguish a person's goods or services manufactured or sold to indicate their sources. Trademarks allow companies and businesses to be identified by their symbols or logos by what they are selling. For example, Nike is identified by the check symbol, and people identify that symbol with athletic wear and sneakers, that is Nikes symbol and cannot be used by anyone else. McDonald's symbol is the Golden Arches, when people see those they know who those arches belong to and what they sell. There are all different types of trademarks; a service mark is the same as a trademark except it promotes a service instead of a product. A certification mark is a symbol, device, or name used by an organization to vouch for their products. A collective mark is a symbol, mark, phrase, or label, used by member of an organization to identify goods, members, products, or services they provide. Only members of particular groups or organizations are allowed to use the collective mark, even the group itself cannot use collective marks, only the members of the group. Protecting your trademark with trademark law consists of preventing others from using your mark. If others were able to use your trademark, how would the consumers distinguish your product from others?

The law will favor business that first use the mark they choose, copyright laws come from the Lanham Act. This act is designed to prevent trademark infringement. The law prohibits uses of trademarks, trade names that are likely to cause confusion about the source of a product or service. Infringement law protects consumers from being misled by the use of infringing marks and also protects producers from unfair practices by an imitating competitor. The law does not give much security to trademarks that consist of common or ordinary words because they are not essentially unique. A person's name, geographical terms, and terms used to describe the product or service will receive little protection from the law. However, these trademarks can be protected if they gain distinctive recognition from long use and marketing. Trademarks that are not used, abandoned, or used to generically describe a type of goods or service, cannot be protected because if used, will cause confusion about the product among the public.

Most believe that when they register a specific domain name, the trademark is solely their own and nobody else can use it. This may not be true however, not only must you register the domain, but you have to use the business name enough to achieve distinction. The best way to do this is through customer awareness and marketing. Search around before you choose a trademark and make sure that it is not already in use. It would be very costly if an infringement lawsuit was brought against you for using someone else's trademark. Using a professional service to make a trademark search for you may be a good idea. Leeanna is an expert author writing for Trademark Law

CHINESE TRADEMARK REGISTRATION - AN ESSENTIAL PRIMER

Though the United States media have published a number of stories deriding China's intellectual property protection, those articles nearly always neglect to mention that in most instances involving trademarks, the fault lies with the foreign company, not with Chinese enforcement. The reality is that many foreign companies fail to register their trademarks in China and thus have no real right to complain about any "infringement" there. To expect protection, foreign companies must register their trademarks in China and the prudent company does this before going in. There are actually a number of people in China who make a living by usurping foreign trademarks and then selling a license to that trademark to the original license holder. Once one comes to grip with the fact that China, like most of the rest of the world, is a "first to file" country, one can understand how easy this usurpation is, and also how easy it is to prevent it. The fact that you are manufacturing your product in China just for export does not in any way minimize the need for you to protect your trademark. Once someone registers "your" trademark in China, they have the power to stop your goods at the border and prevent them from leaving China. The key to protecting a trademark in China is actually very simple: register it in China. China's trademark requirements are actually quite similar to those in most other countries. The trademark must not conflict with an existing Chinese trademark and it must be distinctive. China allows for registration of all marks for goods, services, collective marks and certification marks. China's Trademark Office maintains a centralized database of all registered and applied-for trademarks. Trademark applications that pass a preliminary screening are published by the Trademark Office and subject to a three month period for objection. If there are no objections within this three month period, or if the Chinese Trademark Office rejects the objections as frivolous, the trademark is registered. If the Chinese Trademark Office supports an objection, it will deny the application. Denied applications may be appealed to the State Administration of Industry and Commerce Trademark Review & Approval Board and then to the People's Court. Based on our experience, objections to trademarks are rare. A Chinese trademark gives foreign companies a surprising amount of protection in China. If a foreign company learns that its trademark is being infringed in China, it has a number of actions available to it. We usually advise our clients to pursue a multi-pronged approach to protect an infringed upon trademark and to pursue the infringer. The foreign trademark owner should usually file a lawsuit against the infringer, seeking damages and an injunction stopping the infringer from continuing to sell the infringing goods. The Chinese courts in the more commercialized regions are actually quite willing to enforce China's trademark laws, even for foreign companies. Trademark infringement is a crime in China. For serious cases of infringement, a complaint to the office of the public prosecutor can often result in a criminal prosecution against the infringer. The Chinese police will close the offending operation and seize the counterfeit goods. The courts are authorized to impose both fines and imprisonment. Finally, if the counterfeit goods are destined for export, a notice to the Chinese customs authorities will prevent export of the counterfeit goods. Steve Dickinson is an attorney with the international law firm of Harris &Moure (http://www.harrismoure.com). Steve is based in China, where he focuses on assisting small and medium sized businesses. Steve is fluent in Mandarin Chinese and has been working on China matters for more than twenty years. He can be reached at firm@harrismoure.com.

It Really Is My Trademark, Honest

 

A trademark could be a different name, symbol, sign, phrase, picture or style employed by a business to work as an identity for its products and services as well as for itself.

A trademark lawyer?s job requirements include trademark application, filing and prosecution. A trademark lawyer searches and clears the trademark search analysis. He looks after the trademark infringement and enforcement matters and matters involving third parties? infringing marks. He manages all trademark litigation, prepares, reviews and negotiates license agreements. Registration and monitoring of domain names and general trademark counseling about routine trademark matters and education are the requirements for a good trademark lawyer.

A trademark lawyer is required to take the following steps for a trademark registration process:

1. The trademark lawyer makes an inquiry whether the name selected has already been registered or if it infringes a registered name or mark. It is only after the complete determination of trademark?s validity that an applicant may begin using the symbol.

2. The trademark lawyer then prepares and files the trademark application.

3. After one or two months the United States Patent and Trademark Office (USPTO) acknowledges the filing of trademark. The trademark lawyer then obtains a serial number for the application.

4. If the proposed trademark infringes on any existing one, the Trademark Office in consultation with the concerned lawyer, suggests possible alterations that need to be made. This is done within six months from the filing of application.

5. Within eight months of filing the application, USPTO publishes the proposed trademark in the Official Gazette. During this period, trademark holders may file objections to the proposed trademark.

6. After ten months, USPTO issues a Notice of Allowance. After this the applicant can start using the trademark in business.

The applicant may begin using the trademark only after the approval by USPTO. It is only then that an applicant can commence using the mark or name with the ? symbol.Howard Schwartz is a partner in several business strategy groups, including HJ Ventures International, Inc. Howard has worked with hundreds of entrepreneurs worldwide with a focus on writing Business Plans for companies interested in raising capital from Venture Funds. http://www.hjventures.com/trademark/Trademark-Lawyer-Directory.html

Domain Name Trademarks

As your Internet business grows, the value of your domain name increases. The issue of a domain name trademark should move to the top of your list. You need to guard against unscrupulous competitors that may try to incorporate your domain name in their meta tags to obtain search engine rankings under your name. If you have a domain name trademark, you can go after these individuals and compel the search engines to remove their listings.

As your Internet business grows, the value of your domain name increases. The issue of a domain name trademark should move to the top of your list. You need to guard against unscrupulous competitors that may try to incorporate your domain name in their meta tags to obtain search engine rankings under your name. If you have a domain name trademark, you can go after these individuals and compel the search engines to remove their listings.

What Is A Trademark?

A trademark is a distinctive item that is used to identify a logo, product, device, package or service. The trademark identifies the item as being provided by a particular firm. To protect these items you can obtain a mark from the patent and trademark office that prohibits others from trying to gain economic advantage from your mark.

Domain Name

The patent and trademark office views domain names in a unique way. The office views the http://www element as a part of the file transfer process, not your domain name. The .com, .net, etc., designations are considered top-level domain identifiers and are also disregarded for the purpose of a domain name trademark. For example, our domain name is http://www.sandiegobusinesslawfirm.com. If we submitted the domain name for registration, only the sandiegobusinesslawfirm portion would be considered for a mark.

Locators Cannot Be Registered

A domain name is a locator for file pages. When you type in your domain name, a server locates and displays files. If a domain is used solely for this purpose, it will not be granted a mark. Instead, the domain name must be incorporated into the site. For instance, Amazon is recognized as an online bookstore and the site actually has the word Amazon on every page. Since "Amazon.com" is more than a locator, Amazon can apply for and receive a trademark. If Amazon used the domain name, bookstore.com, the company would be able to register Amazon, but not bookstore.

Generic and Descriptive Terms

Domain names that are generic or descriptive in nature cannot be registered because they fail to designate a distinctive product or service. For example, sandiegobusinesslawfirm is comprised of generic terms and describes who and where we are, to wit, a San Diego business law firm. This domain name cannot be trademarked. The same result would occur with bank.com, book.com, advice.com, etc.

You may be thinking, What about Coke? "Coke" is a trademarked term because it is a distinctive term for a soft drink product. It just so happens that a brilliant marketing plan has convinced most people to refer to soft drinks as cokes, even if they actually prefer another brand!

Trademarks are an important factor in protecting your Internet business. Armed with a trademark, you can keep competitors from pulling traffic off the search engines when people search for your site.

Richard A. Chapo is with SanDiegoBusinessLawFirm.com - This article is for information purposes only. Nothing in this article is intended to address the readers specific situation nor does it create an attorney-client relationship.

 

Trademark Searches

Why Every Web Business Needs One Trademark Searches

Why are Trademark Searches Necessary? HERE IS A TYPICAL STORY.......

About Trademark searches. You are up and running with your new Web based business. You have invested money and time developing your site and your online marketing program. Then, to your surprise, you receive a certified letter from a company in Washington State telling you that they own the name of your company and that you are to immediately cease and desist from all infringing activities. The letter goes on to cite a laundry list of bad things that the company is going to do to you if you do not immediately cease and desist.

Unfortunately this is a very common story. This situation can be avoided by performing a trademark search before you invest money in your business or domain name.

WHY DOES THIS HAPPEN SO OFTEN ?

The reason this situation occurs so often is that most people do not realize that simply owning a domain name and registering the name through the InterNIC does not necessarily confer the right to use that name for commercial purposes on the Internet or otherwise. It must be kept in mind when selecting a domain name that the InterNIC procedures and Trademark Law are two separate and distinct matters. Both must be considered when starting a web-based business.

REMEDIES FOR TRADEMARK INFRINGEMENT

Remedies for trademark infringement range from (1) granting of an injunction prohibiting use of the infringing name, (2) seizure and destruction of infringing items which can be must broader in scope that the simple web page itself, (3) suit for damages based upon loss of profits to the owner of the name, your profits from the use of the name, value associated with dilution of the name, and other damages, (4) possible punitive dames that can far exceed the amount of damages actually suffered, and (5) possible attorney fee award. Each of these can haves disastrous effects on your business.

Trademark Search - MILLION DOLLAR ADVICE

Before using a domain name, every company that wants to create an Internet presence needs to perform a federal trademark search to assure that the name does not infringe on the rights of another party. Failure to get a trademark seach can lead to disastrous results as described above. Receiving a letter like the one that is described above will quickly make you wish that you had taken the precautionary step of performing a trademark search before resources are expended on your web presence.

TYPES OF TRADEMARK SEARCH

Trademark Search of Trademark Office. Simple Trademark Search. Several online companies offer online trademark searches of the trademark office records to determine whether your name infringes upon a registered trademark of another party. You can perform a trademark search of the trademark office database on your own. There is no need to pay for a trademark search of the trademark office database. I would argue that these free or bargain price trademark searches of the federal trademark records do you little if any good. Sure, they will tell you if your name infringes upon a party that has received a registration of a federal trademark. But that is all that type of search will tell you.

Understanding the limitations on this type of trademark search requires a brief description of the nature of trademarks and the trademark procedures. One key misunderstanding that a lot of people have about trademark law is that federal trademark rights DO NOT come into existence when a trademark application is filed and a registration is received. The reality is quite to the contrary. Trademarks rights arise upon use of a mark in interstate commerce. That means using the mark in connection with a good or service across state lines. State trademark rights can attach upon any use in connection with goods or services and do not require use in interstate commerce.

So it is obvious that there are loads of people out there who have valid claims of state and federal trademark rights who have never filed a trademark application. These people would not be found by searching the records of recorded trademarks in the federal trademark office. I would venture to say that there are more people out there who have claims that they have trademark rights that have not filed trademark applications than those that have actually filed applications. For this reason, in order to get meaningful results from a trademark search it is vital that common law sources also be checked. This type of search goes to a number of different business sources to search for conflicting names and gives you much more meaningful results that a simple trademark office search. In fact, prior to filing a federal trademark application, it would be negligence for any party to simply rely upon a search of the trademark office records. There are just too many potential parties out there that would not be picked up in this type of limited search.

It should be kept in mind that there is no search available that can give you 100% guaranteed results that there is no one out there that is doing business under your selected name. But relying on a simple trademark office search is unacceptably risky. Additionally, running a comprehensive trademark search can help you establish that you used good faith and any infringement is purely innocent if a party later crawls out of the woodwork and alleges infringement.

Sure, comprehensive common law trademark searches are more costly, ranging anywhere from $275.00 per search to $700.00 per search. But web-based businesses should factor this cost into their start-up expenses. It is perhaps the most important money that you will spend in terms of avoiding legal risk and expenses.

Article provided by DigiLaw Publishing, Inc. offering web development and technology agreement form document and resource packages at www.weblawresources.com

Traffic Isn't Where It's At!windsong

You have permission to publish this article electronically or in print, free of charge, as long as the bylines are included. Only the author may edit. If you must edit, please don't publish. A courtesy copy of your publication would be appreciated but not necessary.

TRAFFIC ISN'T WHERE ITS AT!! by: windsong

You've heard it before. You need to get traffic to your site. Promote, promote, promote. Thats what you get from all the promoters and marketers on line. Is this really true?

You want to market online. So you have built your site and submitted it to the search engines. You have placed classifieds and FFA's. You are continually promoting, and this is good. You DO want to bring traffic to your site. But it needs to be targeted traffic. What does that mean? It simply means that all the traffic you bring to your site should be potential customers. But everyone is a potential customer, you say. Wrong. You want to pull new traffic from those people who are already interested in what you are selling. However, all this new traffic to your site isn't worth anything unless they:

1. Stay at your site, instead of clicking away. 2. Return to your site often. 3. Buy your products or services.

Now you ask, "How do I keep 'em at my site?" and "How do I keep them coming back?" and "How do I get them to buy my products?" Well, actually its easy. There are a few things to consider. People out there in cyberspace are looking for information. They are looking for whatever they can get for free. They are in a hurry. They have no patience whatsoever. So how do you design your site to meet the needs of these surfers?

First off, you've heard the old saying, "content is king". This point can't be stressed enough. I have been to sites that claim to have content. They have tons of banners and maybe a link to an article or two, or some links to the sites of their friends. That is NOT content. Articles are great, but have them (more than one or two) on your site. Links to other sites can be good, but you need to be sure that they are relevant to the theme of your site. If not, you are going to lose that surfer before he/she has a chance to see what you are offering.

Offer things on your site that are free. These should be things that have actual value to your visitors, ie: a free internet marketing course, free E-books, free internet access, or free email accounts. You get the idea. The more the better. However, be sure that these are quality freebies. Nobody likes cheap and sleazy stuff. It may take a little effort on your part, and some negotiation with other webmasters, but will be worth all your efforts. You will be building a rapport with these surfers. They will remember where they got that terrific freebie and come back looking for more.

If your site is well laid out, and easy to navigate, in other words, user friendly, and you have more things on your site than what they have time for, chances are they will bookmark your site and will return at a later time. The more often they return, the greater the chances are that they will purchase one of your products or services. But remember this: the content on your site must be interesting enough for them to want to return. If they don't see anything that looks interesting they will click away and you have lost them forever. So the first and formost thing is to choose content carefully. Be sure that it is relevant to the theme of your site. If your site is geared around health related products, then DON'T have resources geared towards web design. It just won't fly.

Keep graphics to a minimum. Remember that these surfers are very impatient. They want a page to load fast. Graphics slow it down considerably. If you use images on your site, be sure to optimize them. You can reduce most graphic files to about 1/2 their size. This does not affect the size of the graphic, just the file. Some graphics optimizers can be found at: http://marketing-resources.com/utilities.html

If your main page is lengthy and takes a while to load, you may need to break it up into 2 or more pages. Be sure each page in your site has links to ALL the other pages. Make navigation easy. This will encourage surfers to check out all of your site, or at least the areas that they came there for in the first place. Then, hopefully, they will bookmark it as a useful resource. But you must have content that they will want to come back for.

How do you find content for your site? Easy. Surf the web. Spend some time searching out useful sites. The internet is an educational experience. Get out there and explore. Use it to your advantage. You will soon have a site that people want to go to. Keep them coming back. Many of them will buy your products or services. Keep updating your site so it never, ever becomes stale. Keep those surfers happy. See you at the bank!

windsong is the webmaster/publisher at: http://marketing-resources.com/

Learn what you need to know about designing your site! Subscribe to windsong's free e-zine: All About Web Design!(tm) Send a blank email to: mailto:AllAboutWebDesign-subscribe@yahoogroups.com

Download a free ebook, "Web Design Course" here: http://marketing-resources.com/design.exe

Do You Need Your Business Name Trademarked

 

Do You Need Your Business Name Trademarked November 2001
By Bob Brolhorst

A name is important to a business. It's so important, in fact, that names can
be trademarked, which means they're owned. Kind of like domain names, once
it's used it's gone. But you can't trademark a person's name if it doesn't
belong to you. I could not trademark Jay Leno no matter how hard I'd want
to try.

You apply for a trademark through the Department of Commerce. You can
either do it yourself or hire an attorney. I did it myself to save money. Once
the application goes in, you can use "tm" after the slogan or name to indicate
you lay claim to it. It takes up to one year to get permission and the
certificate from the Department of Commerce, although their goal is to
shorten that to a matter of 4-6 months, but it was worth every penny of
investment.

To own a name or a slogan, to make it truly yours, to gain the recognition that
marketing that slogan can give you, trademark it and protect it. Every seven
years, renew it.

Yes, trademarks are necessary, because it gives you an identity, a goal, and a
source of pride toward what you took your time and money to protect your
business.

What can happen if you don't trademark your business name? You could be
given a court order to reliquish part or all of your profits from a product
that you sell. How is this possible?

Let's say for an example that you use a business name that has been
trade marked by another company. By law, if this other business owner
finds out that you are selling products under her/his business name and
you are taken to court a judge can rule that you give up all your profits
to the business owner that has the business name trademarked.

Bob Brolhorst
Wave 5 Marketing
bbrolhorst@wave5marketing.com
http://www.wave5marketing.com