Can You Trademark Your Business Name?

A trademark is a distinctive image, word or other thing that associates with a product or service. So, can you trademark your business name?

Most people think trademarks are logo oriented. In some ways, this is true. The Nike Swoosh is clearly a logo trademark that stands out in peoples minds. When you see it, you immediately think of Nike and its products. While logos can clearly be trademarked, what about a business name? The answer is both yes and no.

A trademark is a consumer oriented thing. While it protects the intellectual property of businesses, it is a legal step designed to protect consumers. The basic idea is a trademark should point to a particular product or service and only be used by the company backing those items. This helps consumers in two ways. First, it represents an assurance of a particular type of quality associated with the products or services provided by the company. Second, it precludes other companies from causing consumer confusion by infringing on that mark.

When it comes to your business name, you can trademark it if certain requirements are met. I am going to avoid the legal mumbo jumbo that confuses people, and stick with a general rule of thumb. If you use your business name in advertising or on the product or service, you can trademark it. A classic example is ?Google?. Google is both a company name and used on the service itself. When you go to the home page of Google, you see ?Google? prominently displayed. As a result, this business name can be trademarked.

If you do not use your business name in a direct communication to consumers, you cannot trademark it. Why? Well, there is nothing distinct about it that reminds consumers of the connect. TJMaxx is a well-known discount retail store. Most people have at least heard of the name. The company behind the name, however, is actually TJCos. Nobody has heard of ?TJCos? and certainly do not associate it with a store. As a result, this business name would be difficult to trademark, if not impossible.

If your name is going to be a fundamental part of your marketing effort, you should consider trademarking it. If it is not, then your probably should save your money. Obviously, each situation is different, so make sure you speak with legal counsel in your area.

Richard A. Chapo is a trademark lawyer with http://www.SanDiegoBusinessLawFirm.com.

Intellectual Property - The 3 Branches: Copyrights, Patents & Trademarks

When you hear the phrase intellectual property, what do you think of? How can something that exists in your mind be considered property? Are your ideas your property similar to that of your house or car?

Simply put, no, your ideas are not something you can solely own. After all, if ideas were never shared in the marketplace, where would we be? Imagine if Bill Gates had never shared his ideas about the new BASIC programming language that he and Paul Allen developed...would Microsoft exist? How would that have impacted our world today? Let's take it back even further: what would life be like if Louis Pasteur had never shared his ideas about heat treatment, what we now call pasteurization? The sharing of ideas has brought us to where we are, good and bad.

So, what is intellectual property?

Intellectual property is those ideas fixed in a form. That is, it is NOT the idea itself but rather how it's presented. It's also the laws set up to register, manage and govern those presentation of ideas. That can be a bit hard to wrap your mind around so let's look at some examples from the three branches of intellectual property: copyrights, patents and trademarks.

Copyrights:

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

Patents:

Patents are protection for inventions as well as significant improvements to already existing inventions. Inventions are mostly thought of as things like Edison's electric lamp or phonograph. There are three distinct sections within the patent realm - utility, design and plant. Utility patents protect the invention in its utilitarian sense (i.e. how it functions and how it's used) whereas design patents protect the invention in its ornamental appearance. Let's go back to Edison for an example: he obtained a utility patent for his electric lamp as well as a design patent for the look/design of the electric lamp.

Trademarks:

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

Summary:

In a nutshell, those are the three branches of intellectual property. The free flowing of ideas has been and will continue to be important to our world development. Of course, protecting those ideas of yours, whatever form they take, can be just as important. Would Bill Gates be the richest person in the world if he had not secured all of his intellectual property rights?

Let your ideas flow...but be sure to protect your intellectual property!

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.

Trademarks - What is a Conflict? What is a Strong Similarity?

Comprehensive trademark research consists of several layers:

• Researching comprehensive databases, such as Lexis-Nexis or Dialog
• Looking for similarities, such as synonyms, word placement & spelling variations
• Consultation with a trademark attorney if Conflicts or Strong Similarities arise

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

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

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

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

1. Joe has a pending Federal trademark for his auto detailing service called It's in the Details. Becky wants to call her new auto detailing service, It is the Details. They are both offering the same service and their trade areas cross. This is a Strong Similarity, based on Sound & Appearance and Joe's pending Federal application.
2. Mary has a Federally registered trademark for her clothing line, Scary Mary's Apparel. Dan wants to use the name Mary Frightful Wear for his clothing line. This is a Strong Similarity, based on Meaning & Mary's Federal registration.
3. Sam has a California state registered trademark for his restaurant, Crabtastic Eats! and has no plans to expand outside of the state and primarily serves locals. Hannah's restaurant, Crabtastic, is located in Maine. She also has no plans to expand outside of the state and primarily serves locals. This is NOT a Strong Similarity based on their different trade areas.
4. Lorena's online payroll service, Pay Up, has been in use for 15 years and has clients across the country. Gene wants to start an online payroll service called Wage Wizard. Neither of them have trademarks. This is NOT a Strong Similarity based on the dissimilarity in the names.

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

Two important notes:

1) It's crucial that comprehensive research be conducted in order to decide if the name is truly available or not. Free preliminary sites found on the web are a great place to start but please be aware that this is merely scratching the surface of what's out there.

2) Determining what is a conflict or a strong similarity requires experience and it is very easy to over or under-react to marks you've found. If you're vacillating about any marks, contact a trademark research firm or an attorney for further consultation.

Now, once those similar marks have been found and determined, the next step is to check into them to determine whether or not there would be a likelihood of confusion between the two companies when used in commerce.

How to get started with your competitive check:

1. For Federal trademarks: check the current status of the application by going to USPTO Check Status site and entering the serial number in the appropriate box
2. Do a web search for the trademark name AND for the owner name.
3. Call information to find phone numbers and contact information for each company.
4. Contact each of the similarities to find out specifically what they do and what their business area is.

Specific questions to ask:

• What services do you provide? / What exactly does your product do?
• I notice you are located in _________, are you currently doing business outside that area?
• Do you have a web page that describes your business? Do you have a brochure that you could send or fax me?

It is best to not let on who you are - simply act like an interested consumer.

Once you've checked the status of the application & contacted the companies directly, the next step is to discuss the findings with a trademark attorney. S/he will assist you in determining your next steps.

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

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.