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Archive for the ‘Trademark’ Category

Is a trademark really necessary?

Saturday, January 12th, 2008

If you’re wondering if you need a trademark, the answer is yes and no. Your business will have very little chance at competing in its industry if there is nothing distinct about it. However, that doesn’t necessarily mean you must formally register a trademark.

That depends on what it is that makes your company so distinctive and what you have to lose if the use of your trademark is unauthorized.

Obtaining a trademark is a bit more complicated than you might think. First of all, you have to make sure the trademark you pick is truly your trademark. This requires intensive research of the trademarks already in existence. Then you must go through the federal registration process and put your trademark into action. So it is a hassle. Is it a big enough hassle, though, that you should avoid it?

There are many benefits to owning intellectual property like a trademark. The biggest one is simply that if someone or some entity uses your trademark without your permission, you can hold their feet to the fire. In other words, it will be hard for people to benefit financially from your trademark. So if you have a commercial product, then there is little doubt that a registered trademark will be a valuable possession of yours.

However, if you don’t have a commercial product or service, it may be a wasted investment. Still, a trademark – in the general, informal sense – is absolutely key to the success of your company. Not only will it help to guide you and your employees toward your ultimate goals, but it’s a great way to make your company stand out from the crowd. This means more investors and customers for you! It’s hard to be a big fish in the pond if you don’t have something that distinguishes you.

The bottom line is: yes, you do need a trademark. The good news is a trademark can be just about anything and you may have one without ever officially recognizing it – through actual use.

Only when you register it will you have to categorize it. A word, image, design, symbol, or a combination of any or all of these – that’s the typical trademark, but anything that obviously distinguishes the source of your products and services from others will suffice. Unless of course you’re infringing on other trademarks by doing so.

So, once you’ve got your trademark, should you register it? There’s little reason not to. After all, when you register your trademark, you’re giving it power. Power in court, if you should ever be so unfortunate to end up there. Unregistered trademarks are honored by the law as well but it’s just more difficult to protect them.

Good luck creating your trademark or acknowledging the trademark you already have.

The Cost of Being Different

Saturday, January 12th, 2008

Is your company unique and distinguished from its peers? Hopefully. But if you use a symbol, word, image, design, phrase, or any combination of these, to illustrate how distinguished you are… there might be a price you’ll have to pay. Luckily, whether or not you buy trademark rights is entirely up to you: you’re not required to do so. So what do you do?

The benefits of a trademark are pretty obvious: your company’s unique identity is easily communicated to the public and no one can capitalize on it but those who are authorized to. However, what about the costs? If trademarks can be easily used without official federal registration, why bother to spend the money and time to go through the trademarking process?

Indeed, through actual use, you may already have a trademark or you may be able to develop a trademark without ever having to deal with the US Patent Office. So why take that extra step toward making your trademark more legitimate? Well, in addition to forcing you to compare your trademarks to others and perhaps discover you are actually infringing on a trademark that’s already in existence, registering your trademark means that you will have a lot more power in court. In other words, if there is unauthorized use of your service mark, it will be handled by the law and likely in your favor. The more popular and commercial your product or service, the more advisable it is you register your trademark.

Intellectual property isn’t always cheap however. As a result, it’s important you have someone on your side who knows all about trademarks and essentially can help you buy your trademark rights. There are attorneys who specialize in patents and during this process, they will be great friends to you. The US Patent Office, too, has a lot of great resources for people just like you. Just visit its website and you can read a bunch of literature on the topic!

The free trademark is the kind that establishes itself based simply on your use of it. However, this isn’t easily protected. However, to get more protection and perhaps peace of mind, you could spend up to a few thousand dollars on formal trademark rights. As well, any company that takes its trademark seriously, whatever it is, will have to also anticipate the legal fees required to defend it.

Another tip for trademark-seekers: your trademark rights might be only at the local level or they may be nationwide. This is extremely important and will of course affect how much money you spend. There is another expense, too: searching for other trademarks that may resemble yours. Too often, this step isn’t taken and there are severe consequences later.

If you’re not yet ready to legitimize your trademark by registering it, you can still lay claim to it by making it with “TM” (which stands for trademark). Trademarks are all around us, whether registered or unregistered. So make sure that you remember this as you consider the costs of trademark rights.

What is a trademark anyways?

Saturday, January 12th, 2008

We’re not necessarily talking about Elvis’ trademark sideburns or Catherine Hepburn’s trademark voice, but that’s not too far from the path.

They’re everywhere you look, and yet do you really know what they are? Trademarks are a strange animal and it’s necessary that you get to know them if you have business endeavors of any kind. Whether you’re making your own trademark or using other trademarks, there’s a whole lot to learn.

The definition of trademark is a pretty simple one. It’s only later that the topic gets complicated. Basically, a trademark is just a sign of some kind that distinguishes a company from all the rest. Trademarks sit under the umbrella of “intellectual property.” A trademark can come in many different forms. Maybe it’s am image or a a turn of phrase. Paris Hilton was recently poked fun at for trademarking the phrase “that’s hot.” Indeed, there’s a lot of controversy over what can and should be trademarked.

Are you thinking about buying some intellectual property? If you do, you will be able to take people to court if they use your trademark without permission. It’s important that your company has a signature and unless it’s protected, it’s useless and can be used by just about anyone. A trademark might seem a simple concept enough, but if you overlook the issue, it could cost you a lot down the road.

When talking about trademarks, you’re bound to get into some murky water. For instance, some marks, logos, phrases, images, etc, become trademarks over time, if by chance they simply grow to become synonymous with a particular product or service. When we think of trademarks in this way, it’s pretty apparent that a trademark is not a narrow concept at all. Anything that conspicuously distinguishes something from something else, in a sense, can technically be a trademark.

What about those little circles with the “TM” and “R” in them? What do they mean? The “TM” refers to trademark and the “R” refers to a registered trademark. While they serve as gentle reminders that the trademark is protected by law, they aren’t necessary. There are both unregistered and registered trademarks out there, the latter obviously carrying more weight in a court of law. Most of the trademarks you see on TV and in magazines are registered.

Just as with physical property, intellectual property – when handled in court – is dealt with based on its jurisdiction.

There are five basic kinds of trademarks: distinctive, arbitrary, suggestive, descriptive, and generic. On the other hand, there are some symbols that can never be used in trademarks, like national flags. It’s also important to note that national and international trademark law vary, so especially if you are conducing business overseas, you should be aware of that.

A trademark can open your company up to all kinds of business and separate it from the pack, but if it’s not formed carefully, it may misrepresent and misdirect your company. So choose your trademark  intelligently and make sure you understand the law backing it up so that you can put it to good work

What Your Trademark Can Do For You

Saturday, January 12th, 2008

So, we all know how important a trademark is. Every company must find a way to distinguish itself from every other company and it’s easy to do just that with a simple symbol, image, design, phrase, or word. But what if you were to take the next step and buy rights to such a trademark? What would you get in return? The short answer is: protection.

The long answer is a bit more complicated. Essentially, a trademark is intellectual property. Even though it’s not tangible, like a car or a pair of shoes, you can still own a trademark. A lot of people opt to buy the rights to their trademark, especially those advertising commercial products, because that usually means unauthorized use of it can be successfully fought against in court. For instance, if Company A uses Company B’s trademark to express some kind of message, Company A can be sued.

Now, trademark “abuse” can be policed even if there’s no official representation of the trademark over at the US Patent Office. In other words, sometimes a trademark evolves naturally and becomes distinct on its own. Even if it’s not registered federally, it doesn’t mean it’s not a trademark that should be recognized by the law. However, by registering a trademark, you make it a lot more likely that it will be protected. Basically, it’s easier to prove the legitimacy of  registered trademark, as opposed to an unregistered trademark!

Additionally, if you registered your trademark, that means you get exclusive use of it. That makes your trademark, and thus your company, all the more distinct and valuable. There is a caveat here, however. You must register your trademark in a specific jurisdiction, so your rights are somewhat limited in that sense. Laws vary form state to state, so make sure to research this as you think about the protections you will receive.

If you don’t use your trademark, this will not bode well for you. Regular use of the trademark is a requirement if you want to protect it! Find out what precisely is required in your jurisdiction and make sure to follow through with the guidelines. Chances are using your trademark won’t be an issue – why would you want it to go to waste?

Now, because of the First Amendment, there is an inherently limited protection of the trademark. Not every unauthorized use of your trademark is against the law. In general, though, if you register your service mark, you’ll find that the law is more eager to be on your side.

Remember: you still have protections, even if you’ve never formally bought rights to your trademark. It’s often a good idea to inscribe “TM” next to your trademark, in this case, so as to let people know you think it is original and distinct. This will be helpful later on if you do end up in court, but hopefully it will prevent you from being there in the first place.

Hopefully now you’re more enlightened about the strange ins and outs of trademarks and you can use this special property properly.