Trademark Infringement

Trademark infringement is a possibility for every business, whether you be on the receiving end of an infamous "Cease and Desist" letter, or whether you find that a competitor is infringing one of your trademarks. Either way, this is the time to find qualified legal assistance in the form of an experienced trademark attorney to help lead you through the quagmire.

If you have received a "Cease and Desist" letter, the first thing that you do should not be to respond to it, regardless of whether the letter tells you to or not. Instead, the first thing you should do is contact your trademark lawyer. If you don't currently have a trademark attorney, ask your business lawyer to refer you to one. If the business attorney claims s/he can take care of this for you, do not take them at their word on this. Inquire as to their actual trademark experience. This is not the time for someone who read a book or two to use you as their test client.

If you are on the other side, and you have found someone you believe to be infringing your trademark, now is also the time to contact your trusty trademark attorney. Be sure to think about the business aspects of the infringement as well. For example, the RIAA is taking quite a bit of heat lately because of their approach to copyright infringement. Suing your customers, especially when the customers may be innocent of wrongdoing, or single mothers, grandmothers, or non computer users in the case of RIAA, may not be a good business strategy. Making this decision along with your trademark attorney, weighing the pros and cons of taking action, is the best way to proceed.

Mikki Barry has been a trademark and intellectual property attorney for technology and small business companies since 1991. For more information see http://www.mikkibarry.com This article is not meant to be legal advice.

Trademark a Name - How to Register a Trademark

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

Is it required that I register my trademark?

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

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

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

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

Preliminary Search Sites:

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

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

Ok, so the name is clear; now what?

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

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

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

Shannon Moore is the General Manager, East Coast for TradeMark Express. Since 1992, TradeMark Express has met the needs of their clients with comprehensive research, application preparation, attorney referrals and trademark consultation. For further details, please visit us on the web at TradeMark Express or call Shannon directly at 800.340.2010.