The Difference Between Trade Secrets And Trademarks

Some people get confused between trade secrets and trademarks. A trademark is something that is publicly recognized and known as being officially associated with a particular company. In contrast a trade secret can be a much more broad definition and by its very name is not made public.

According to the laws in most states, any device, pattern, formula, idea, or collection of information that gives the owner an advantage in the marketplace and is protected by the owner in a way that shows that it can be reasonably expected to keep their competitors or the public from finding out about it without stealing it is considered a trade secret.

There are many examples I can give of trade secrets. In an actual product, a trade secret could be the way certain ingredients are combined in the formulation of a nutritional supplement. Recipes, in particular those employed at commercial restaurants, are considered to be trade secrets.

One very famous one that I can think of right off is Colonel Sander's recipe for his Kentucky Fried Chicken. An idea for an invention that one has that they have not filed for a patent on yet would also be considered a trade secret, as are the complex algorithms that search engines like Google use to give us search results online.

Trade secrets are the opposite of other types of protecting of intellectual property such as trademarks and patents. The whole idea of a trade secret is to keep it from public knowledge and it is basically something that a person or company does themselves. Your trade secret will be given protection under law until you make the information public.

Companies and individuals protect information that they are unable to guard with other legal means such as patents and trademarks. There are numerous things that can be considered trade secrets. An idea that will give you a big jump over your competition in a particular market or even an idea for a piece of software or a website would also be a trade secret. Business information that you keep secret and only allow access to by employees such as marketing plans, costs, and pricing would be protected under law.

According to the law, the owner of a trade secret can legally prevent employees from using trade secret information or disclosing it by binding them with confidentiality or non-disclosure agreements. They also have legal protection from people who get the information by stealing it or through industrial espionage as well as people who get the information knowing that it is a protected trade secret.

The best way for a company to protect itself legally is to have employees sign a non-disclosure agreement, also known as an NDA. You should also have them signed by anyone that you do business with such as lenders and investors. An intellectual property attorney can help you with drafting this important document.

Gregg Hall is an author living in Navarre Beach, Florida. Find more about this as well as trademark lawyers at http://www.focusonip.com

PPC Ads Face A New Trademark Limitation

A federal court ruled last week that it is not only a trademark violation any longer to use another company?s trademark to deceive search engine users in the paid ad headline. The court has further ruled, that you can not purchase a trademark as a keyword to bring up your paid listing on Google, Yahoo, MSN and other search engines. This decision stemmed from a national jewelry company, who bid on the term, ?dating ring? to bring up their ad for the sale of the companies own diamond rings. The problem was that another company already had the trademark to the term ?The Dating Ring?. When this term was entered by users of the search engines, the national company?s ad came up for the sale of rings.

The defendant argued it never placed the trademarked term on any of its products or used the term ?dating ring? on its Web site. Unfortunitly for the company, they did use the term in the content of their ad.

This ruling makes the practice of going after your competitors name very costly now. The issues as I see it may become the inability to use common terms that the causal user may search by, where they do not even know it is a trademark. In this case illustrated, the term, ?dating ring? seems rather innocent to me. I had no idea there was even a company with that name. The law provides protection for companies name as it is used in commerce. However, when a company chooses such a general term for a name and does not have a large presence in the economy or even in the specific industry it conducts business, and then it seems unfair to require every company bidding on key words to conduct a trademark search for each and every term they will purchase. This type of investigation can prove to be most costly, where it is a standard practice in the P.P.C (pay per click) world to buy upwards of two to three thousand terms know as long tail terms, to bring in as many visitors as possible. The goal is of course to make a sale, collect information or what ever the desired conversion for the site may be. However, just because someone uses their web site in commerce and has purchased a term, that has a very plain or simple meaning, is not evidence that such a person or company intended to violate a small unknown companies trademark.

This article was written by Michael Goldstein for the Law Office of Goldstein and Clegg, a writters of the E-legal Lawyer Blog.

How To Avoid Legal Trouble From Trademark Infringement When You Buy A Domain Name

So you have a hot idea for a website, or maybe you want to capitalize on a hot new product that has just been released. There are some things that you will want to know first before you get yourself in a lot of hot water.

Choosing a domain name isn't really rocket science but it is very important. You want to choose something that is as short as possible, easy to pronounce and remember for marketing purposes, and if at all possible you want to get your main keywords in the domain name. All that aside, you also have to be careful that you don't step on the toes of a person or company who may be inclined to sue you.

For example, judges have ruled against domain name squatters in every case where they registered a celebrity's name. They will also rule against companies that infringe upon other companies. A good case in point would be the case a couple of years ago between the World Wrestling Federation and the World Wildlife Foundation. The World Wrestling Federation called itself the "WWF", put up a website at wwf.com, and the World Wildlife Foundation filed a trademark infringement suit against them. The Wildlife Foundation won because they had been in existence for many years before the wrestling firm and therefore the World Wrestling Federation had to change its name to World Wrestling Entertainment. Obviously this cost them a great some of money to change their name that appeared on millions of marketing products all over the world as well as the expense they had put up on their website and online marketing.

Another more recent issue that is still ongoing is the battle between Apple and the V.O.I.P. product "iphone" from Cisco. Apple announced they would be bringing a product to market called the Apple iPhone to go along with their other products that start with an "I". Cisco promptly filed for injunctive relief and as of this writing the issue is unresolved.

There are a few basic guidelines that will help keep you out of trouble when you are choosing a domain name so you don't run into legal trouble from violating someone?s trademark. Let's take a look at them.

First off you need to realize that a name that is used to identify a particular service or product is a recognized trademark. Trademarks that are deemed to be suggestive and memorable are granted protection by both state and federal law.

A confliction of trademarks occurs when one trademark is in conflict with another and the deployment of both is probably going to be confusing to customers or would be customers concerning the company's products or services. As I illustrated above, when the legal issue is with a later user of a trademark, the law rules that the first commercial user of the trademark is the legal owner and is therefore given protection. The loser will be forced to cease using the trademark and may even be compelled to pay damages to the original owner, particularly if it is determined that they were malicious in their intent.

The smart thing to do is to consult a trademark lawyer and have them check out your idea for a domain name before you invest too much in developing and marketing it.

Gregg Hall is an author living in Navarre Beach, Florida. Find more about this as well as intellectual property attorneys at http://www.focusonip.com

Use It or Lose It: Guidelines for Proper Trademark Use

Once obtained, trademark rights can last indefinitely. However, in order to protect and maintain these rights, a trademark owner must properly use their mark. It is important to remember that trademark rights are based on use. Thus, failure to use a mark properly or to prevent others from misusing or infringing a mark can result in an owner?s loss of trademark rights. The following guidelines for proper trademark use apply to advertising, correspondence, promotional material, displays, labels, packaging, signs, web sites, and any other media that uses, discusses, or describes the mark.

A. Use Proper Trademark Grammar

The most important rule of grammar regarding proper trademark use is that a trademark should be used as an adjective, not a noun or verb. Using the mark as an adjective helps distinguish the mark from the generic term it modifies. After all, a mark is used to identify the source or brand of a product, not the product itself. It is important to follow this rule to prevent your mark from potentially becoming considered generic. Examples of proper use include: KLEENEX ?tissue; APPLE? computer; and JACUZZI? hot tub. Note that each mark (adjective) is used to modify the generic term (noun). In fact, since trademarks function as adjectives, they should always be accompanied by the correct generic name for the product or service.

Other rules of grammar important to proper trademark use include avoiding the use of a trademark in the plural or possessive form. When referring to more than one trademarked product, do not pluralize the trademark. Instead, use the plural form of the generic product to which you are referring. For example, it would be incorrect to say ?Could you pass me some kleenexes so I can blow my nose?? The correct statement should be ?Could you pass me some KLEENEX? tissues so I can blow my nose?? Likewise, trademarks should not be made possessive. Rather, the generic product name should be made possessive. For example, it is improper to use ?I really like Febreze?s fresh scent.? The correct use of the mark should be ?I really like the Febreze? air freshener?s fresh scent.?

B. Distinguish Your Mark

Trademarks should stand out from surrounding text. This helps to further distinguish the trademark from ordinary descriptive or generic terms. There are numerous ways to present a trademark to make it stand out. A non-exhaustive list of examples includes:

All capitals: VASELINE? petroleum jelly
Initial capitals: Kleenex? tissue
Quotation marks: ?Channellock? ? pliers
Italics: Life Savers? candy
Boldface: Pizza Hut? restaurant
Use of the word ?brand?: Scotch? brand and transparent tape.

C. Identify Your Mark as a Trademark

There are several ways to indicate to the public that you are using your mark as a trademark or service mark. The most common way that trademark owner?s put others on notice that they are using a mark as a trademark or service mark is by using the symbols TM, SM, or ?. The TM symbol is used to identify an unregistered trademark, while the SM symbol is used to identify an unregistered service mark. Use of the TM or SM symbol does not imply that a trademark application has been filed; it simply means that the term is claimed as a trademark. On the other hand, the ? symbol is used to identify a trademark or service mark that has been registered with the U.S. Patent & Trademark Office. Thus, the ? symbol should be used only in connection with a registered mark. Alternatively, there are other proper forms of notice for registered trademarks, including: ?Reg. U.S. Pat. & Tm. Off.? and ?Registered in the U.S. Patent and Trademark Office.?

It should be noted that use of a statutory notice is not required. However, to collect damages and profits in an infringement suit brought under the Lanham Act, statutory notice or the defendant?s actual notice of plaintiff?s registration is required.

D. Be Consistent

Trademarks should be used consistently. Variations on how the mark is presented should be avoided. Failure to use a mark consistently can result in consumer confusion or dilute the distinctiveness of the mark. On the other hand, using a mark the same way every time will enhance the distinctiveness, and thus, the consumer?s recognition of the mark.

Conclusion

The guidelines set forth above are by no means inflexible. However, by following the rules of proper use it will be much less likely that a trademark is used improperly. Furthermore, adhering to these rules is likely to increase consumer awareness that a term is being used as a trademark. Thus, a trademark owner should ensure that their marks are properly used, or else run the risk of losing their rights.

? 2006, Gallagher & Dawsey Co., LPA November 2006

DISCLAIMER

We hope you understand that we cannot possibly give accurate legal advice to all inventors in a brief article on intellectual property issues that should be considered when starting a business. Accordingly, nothing in the above is intended as specific legal advice to any person. Such legal advice can only be given by a qualified practitioner after a careful review of all the individual facts. We urge you to consult us, or another licensed professional, before you proceed.

David Dawsey is an intellectual property attorney with the law firm of Gallagher and Dawsey Co. LPA. David also operates TheTrademarkFirm.com website, which is the online portal for trademark searches and applications. Please visit http://www.TheTrademarkFirm.com. You may learn more about the trademark services offered by Gallagher and Dawsey Co. LPA at http://www.invention-protection.com/ip/practice_areas/trademark.html.

History Of US Trademark

Consumers in the 19 century had more face?to--face interaction with the manufacturer of the product they were purchasing. However, as 20 century consumers become less aware of where there products were coming from, Congress determined when creating the Trademark Act of 1905 that trademarks would serve to provide this information to consumers. However, trademark infringement cases were still limited to cases of direct competition and more specifically to goods with similar descriptive properties. Rather than proving dilution of the senior mark by the junior mark, the senior mark had to prove consumer confusion.

Dilution statutes until this point were only at the state level. A heavily contested issue with the 1988 Trademark Law Revision Act was dilution and whether it should be included in the act. It was passed in the Senate with a dilution provision, but removed from the House version before being passed. However, in 1996 Congress, without hesitation, amended the 1946 Lanham Acts to include a section on dilution, the Federal Trademark Dilution Act (FTDA).

The court must determine if it was meant to require proof that actual harm was caused or merely to mean a likelihood of harm. Dilution has been defined by the FTDA as the ?lessening of the capacity of a famous mark to identify and distinguish goods or service, regardless of the presence or absence of competition between the owner of the famous mark and other parties, or likelihood of confusion, mistake, or deception.?

Dilution through tarnishing may create a negative association with the goods or services covered by the senior mark. In order to dilute a more senior mark, the junior mark must be sufficiently similar to the Plaintiff?s mark in order to cause dilution.

The article was produced by the writer of masterpapers.com. Sharon White has many years of a vast experience in law school essays and love essays writing consulting. Get free samples of essays, coursework and MBA essays tips.

The Rewards of Having a Registered Trademark and the Application Process

If you are looking at putting together a business, especially a large one, there are a lot of requirements that you, as the owner or the proprietor, must be able to meet. Local business permits and state regulations are just the beginning.

Then there is as any other paperwork that various organizations and associations deem appropriate for your particular situation. So, while you are spending so much time making sure you have all your ducks in a row, why not take a few more minutes and register a trademark?

You may be wondering why bother with a trademark for your business. Well, let's look at what a trademark is first. A trademark is basically telling the world that this is your property, be it a product or an idea. The sticky thing is that when you are talking about trademarks, you need to be patient because the wheels turn slowly.

One thing that you will want to make sure of before you go through the time and expense of the trademarking process is that your product will sell. So do your market research to be sure there is a place for it in people's lives. If your business is already established, you will most likely want to register a trademark so nobody can use your name or logo.

The process of actually securing your trademark is not a difficult one. You can simply go down to the United States Patent and Trademark Office. Or, even more simple, log on to their website (http://uspto.gov) where you will find enough information on the application process and process. The part that will irritate you is not the process of applying for the trademark, but the waiting will get you every time. That is why patience is so important when you are applying for a business trade mark.

But, if you want to register a trademark with the US Patent and Trademark Office, wait you will do. The nice thing is that the process itself is rather uncomplicated. The first thing you do is check to make sure nobody else has already made a trademark on an idea similar to yours. You may want to hire a professional in this area just to make sure you do not spend unnecessary money.

After that, just fill out the application forms and submit at the local branch office or even on line. At this point the USPTO will designate a lawyer to your application. They will either accept or reject the application. If there are any questions on the application, the lawyer will be in touch with you during the process.

Keep in mind that the United States Patent and Trademark Office is part of the government so it will be a while before you get your trademark registered.

Another thing to know before you start getting your trademark registered is that it is not necessary to register it at all. However, it is advisable to do so because you will be at an advantage of those who don't. For one thing it keeps competitors in check, because they will know they cannot take your idea or property and claim it as their own. This may lead to confused customers and lost money. When you register your trademark and it is used illegally by another party, you can sue them because you are protected by law.

This is not to say that confusion will not happen, but if you take the time to get your trademark registered, there is no reason to worry. You also get to add the R with a circle to your logo as this is the mark that lets every body know this is yours exclusively. This is essentially your business' identity.

Now when it is said that you have to be patient and the process is slow, it is important to understand just how slow. After you have filed your application, you can expect to wait for about two months before you get notified via postcard from the USPTO verified that the application has been received.

You will not hear another word from them for about six months or longer. Then you will receive word that the application has been accepted, but won't know it has been published and approved for another month or so. And that is if the process goes smoothly. If there are problems, add two to four months to that.

Joseph Savard has been in the business of trademarking for 15 years now and is the best selling author of the ebook "The Trademarking Handbook" To Earn 70% Commissions By Simply Referring Others To His Website... Click Here or visit >http://www.trademarkinghandbook.com

Do Free Trademark Search to Avoid Problems with Your Application

If you are looking to register a trademark, you may be wondering if there is a free way to make sure someone else doesn't already have it. Well, that is both a yes and a no. There is no shortage of sites that can do a quick search without a charge.

However, you will need to do a thorough search to be really sure that the name is available. The first step may be being sure you understand what a trademark is in the first place. A trademark is defined as a word or unique name, phrase, symbol, logo, image, design, or may be combinations of these different elements that distinctively identify the service or product you offer to customers; this distinguishes a particular company from their competitors.

Basically, what this boils down to is a symbol or name that identifies your business and keeps it protected from competitors. Also, it makes it illegal for anyone to copy your item without your permission. This is actually enforceable by the government.

The internet is a great tool to use when looking for a free trademark search and is very widely used. You can even use sites that will show you existing trademarks so you know what has already been taken versus coming up with one just to be disappointed that someone else already had your great idea.

Here are a couple of places to perform a free trademark search to see if the trademark you are thinking of is already taken.

The USPTO - United States Patent and Trademark Office - has a website where you can do searches of existing federal trademarks on file. While you are bumping around on the site, check out the depository and download it for later reference. There is also a spot where you can look at a list of goods that can be trademarked.

For example, you cannot trademark a banana, but when you make it a Chiquita, it has been trademarked. It is a good all around site to start with. There is a fact sheet of sorts for the facts of trademarks. Be aware, however, that there are some holes in the site.

For example, if the trademark is on the state level, it will not be on the federal website. Also, the search engine within the site is not intelligent, that is, it does not look for spelling variations, synonyms, word placement and the like. You will have to do that on your own.

The Secretary of States' websites are also worth visiting. Check to see if your state offers a database that is searchable online. Chances are though, this will not include the federal database, or common law databases. Check to see if it is updated regularly and if the search is intelligent to help aid you in your quest.

You can also check the Yellow Pages online. Simply enter the name of a business and leave the rest of the fields blank. This will perform a nationwide search of the name you put in. This is going to be like the United States Patent and Trademark Office site in that the search engine is not intelligent and any variations would have to be put in manually.

By taking advantage of the free trademark searches online, you can gather all kinds of information that may prove useful in your endeavor to register a trademark. If you are not satisfied with what you have come up with, you can also hire a privet company or an attorney.

This is also a good option if you find you do not have the time to search every spelling or word placement variation on several sites. They will be able to perform this detailed search for you for a cost.

You can easily file for a trademark application with the United States Patent and Trademark Office. They are going to make sure there are no trademarks already existing that are similar or exactly like the one you are wising to register. Keep in mind though, that they are not there for the new applicants, but to protect the integrity of existing trademarks.

If the trademark you are trying to file has a resemblance to one already on file, the application will be denied and you will have to start over and submit a new one. This could take months to know if your application has been approved or not, that is why it is so important to do your home work ahead of time.

Joseph Savard has been in the business of trademarking for 15 years now and is the best selling author of the ebook "The Trademarking Handbook" Check out his website for your guide on how to register a trademark now. >http://www.trademarkinghandbook.com