The first reason that dates and deadlines are important in registering a trademark is that the trademark system tends to recognize the first user in commerce of a mark as being the legitimate owner of the mark.  If there are two businesses who are each using the same mark under roughly equivalent circumstances, the earlier user of the mark will win.

There are some exceptions to this concept.  The most notable of them is that, if you are successful in registering a trademark under the “intent to use” rather than actual use, the filing date of your trademark application, which is earlier than your date of your first use in commerce, can be used for determining who actually owns the trademark.

This leads to the critical role of deadlines in determining who owns a trademark.  Let’s say that two businesses are both using the same trademark.  Business A attempts the process of registering the trademark under the “intent to use” the trademark.  Business B, a day later, starts using the trademark without any attempt at registering the trademark.  A day after Business B starts using the mark, Business A starts using the mark.

There are two interesting scenarios here.  In the first, Business A successfully completes the process of registering the trademark.  Business A owns the trademark.

In a second scenario, business A misses a deadline to answer a document from the United States Patent and Trademark Office.  As a result of missing the deadline, the process of Business A registering the trademark stops because the United States Patent and Trademark Office deems that Business A has abandoned the mark.  As a result, Business B now owns the mark, because they were the first user.

This simple example should make it clear to you that dates and deadlines are critical in the process of registering a trademark.  It should also make it clear to you that you need to pay a lawyer to handle the process of registering a trademark, so that there is somebody who is paying very careful attention to make sure that dates and deadlines are not missed.

When someone interferes with that communication by appropriating your trademark, you have a variety of options to stop them.  The fact that you have registered your trademark can be very helpful in stopping the trademark pirates from destroying or misappropriating the good will associated with your business name.

Let’s talk about a hypothetical business named “Pasquale’s House of Tomato Pie.”  Note that, in order to register the trademark, “Pasquale’s House of Tomato Pie,” your name need not be named Pasquale.  For this example, let’s assume that “Pasquale’s House of Tomato Pie” sells frozen pizza over the Internet from Austin, Texas and ships frozen pizza to all 50 states and much of Europe.  Pasquale’s House of Tomato pie has been wildly successful and is the leading name in artichoke-and mushroom pizza.  Let’s assume, for this example, that Pasquale has done the right thing and hired a lawyer to successfully complete the process of registering “Pasquale’s House of Tomato Pie” as his trademark for selling pizza.

Because the buzz around “Pasquale’s House of Tomato Pie” is so great, some sleazy rip-off artist in New Jersey subsequently starts selling second-rate pizzas under the name “Pasquale’s Tomato Pie.” So, people get on the Internet and search for Pasquale’s pizzas and they end up buying from the rip-off artist in New Jersey rather than the real deal from Austin, Texas.  This is a problem for Pasquale.  To make matters worse, the rip-off artist in New Jersey makes bad pizza.  So, he is not only stealing from Pasquale but tarnishing the “Pasquale’s House of Tomato Pie” brand in the process.

Because Pasquale went to the trouble of registering a trademark, he has many options for dealing with the rip-off artist in New Jersey.  Pasquale will go to the lawyer who handled registering his trademark.  The lawyer will then send a cease-and-desist letter demanding that the rip-off artist in New Jersey quit using the “Pasquale’s Tomato Pie” name.  Let’s assume,  for the sake of this discussion, that the sleazy rip-off artist in New Jersey refuses to quit using the name.

What probably happens next is that Pasquale will file suit for trademark infringement.  His lawyer will file a law suit alleging that sleazy rip-off artist in New Jersey is creating a likelihood of confusion by selling pizza under the name “Pasquale’s Tomato Pie.”   Because Pasquale has taken the time and gone to the expense of registering his trademark, his chances of winning the lawsuit and stopping the sleazy rip-off artist in New Jersey are significantly enhanced.  This is the key.  Registering a trademark helps you resolve disputes without having to break some guy’s legs.

Registering a trademark protects your good name.  A registered trademark associates a particular product that you produce with you as the producer and enables the buyer of the product to know the source and quality of the goods or services that they are selecting in the marketplace.  As long as a trademark is properly maintained after you finish the process of registering a trademark, a trademark can last perpetually.  A good example of an ancient trademark is the name Du Pont, which goes back to the period shortly after the revolutionary war.  The Colt firearms trademark goes back to around the time of the civil war.  Registering a trademark helps you protect yourself from having another person confuse the public into believing that they are doing business with you.

Patents are different from registering a trademark in that patents protect your exclusive right to make the things or perform the processes that are your business.  Patents exist for a fixed term (which we’ll oversimplify by calling it 20 years, though it is more complex than that and requires some detailed calculations for each specific patent).  A patent helps you protect yourself from having some knock-off artist manufacture goods or provide services identical to the ones that you have developed.

Copyright is different from registering a trademark in that copyright protects a particular expression fixed in a tangible medium.  Copyright prevents people from reproducing your ideas as they are expressed in print or recording or other tangible form.  There may be some overlap in trademark cases where a trademark is a drawing and the re-use of the drawing by a rip-off artist also creates unauthorized use of a registered trademark.

Trade secrets are the things that you don’t tell other people, whether those are your customer list or your secret formula for blueberry pie.  Registering a trademark, applying for a patent, or registering a copyright all involve very public conduct.  Trade secrets are about protecting yourself from a competitor hiring an employee and learning the things that you don’t tell anyone.

Types and examples of devices that can be registered as trademarks include:

1.)    Names –  Famous examples of registered trademark names include

1. Kleenex, which is a trademark for tissues.
2. Coca-Cola, which is a registered trademark for a soft drink
3. Remington, which is a registered trademark for firearms and ammunition

2.)    Sounds –

1. The ringtone of the Nokia phone is a trademark registered for telecommunications equipment
2. The opening sounds of Microsoft Windows are a registered trademark for software.

3.)    Colors –

1. “Tiffany Blue” is, as every woman knows, a registered trademark for jewelry.
2. A particular shade of brown is a registered trademark for shipping.  This trademark belongs to UPS.

4.)    Drawings –

1. A circle divided into three equal slices is the registered trademark of the Mercedes automobile.
2. The Krupp company is identified by the registered trademark of three interlocking rings.

5.)    Package shapes –

1. The most famous package shape is probably the inverse-oval bottle used by Coca-Cola, a registered trademark that you can see all over the world.

6.)    Sculptural representations –

1. Some universities register as trademarks the sculptural reliefs that are used on their class rings.  A great example of this is the ring of Texas A&M University, for which there are at least 3-4 registered trademarks.

At the end of the day, all of these trademarks work by identifying particular goods and services as being produced by a particular manufacturer and possessing particular quality.  They are registered to protect the producer of the goods and services from having someone else adopt the device and trade on his good name.

Trademarks are not like patents.  In patents, a lawyer has to have a science or engineering degree and take a separate registration exam in order to represent clients who are applying for patents.  In trademarks, any lawyer is technically capable of registering a trademark for you.  And that’s a problem.

You need to go to a trademark specialist.  Just like you may not know all of the small details that are necessary to properly accomplish the task of registering a trademark, a lawyer who handles wills, divorces, incorporations and other matters may not know of all of the details that are necessary to get things right in the process of registering a trademark.  A lawyer really doesn’t know the details of registering a trademark until he has registered a hundred trademarks or practiced trademark law for at least five years.  Until then, he will tend to make rookie mistakes in registering a trademark that will tend to cost you time and money.

So, here are some questions to ask in selecting a lawyer to handle registering your trademark:

1.)    How much of your practice is dedicated to registering trademarks and resolving trademark disputes?

The answer needs to be more than 50%.

2.)    How many trademarks have you successfully registered?

You are looking for an attorney who has registered more than 100 trademarks.

3.)    How many trademark disputes have you successfully resolved on behalf of people who had registered trademarks?

You are looking to hear “more than a dozen.”  Honestly, you just want to be sure that you’re not buying a parachute from a guy who has never jumped out of a plane.

4.)    Do you have specialized docketing software to handle the calendaring and docketing of trademark deadlines?

The answer needs to be “yes, we have software that automatically calculates and sends reminders for everything from six-month abandonment dates to post-allowance five-year dates.”  Microsoft Outlook is not “specialized software” for handling the process of registering a trademark.

5.)    Have you ever been the subject of a grievance or a malpractice suit?

If the answer is yes, you don’t want the guy registering your trademark.

6.)    Do you have malpractice insurance?

The answer needs to be, “Yes.”  If a lawyer screws up the process of registering your trademark, and his negligence costs you money, there needs to be an insurance policy standing behind his work to make you whole.

Registering a trademark is a lot like changing the alternator on an automobile.  It’s pretty simple, and most people of average intelligence can do it themselves, but there some small details that can be incredibly destructive if you get it wrong.  It’s better to have a mechanic handle the process of changing your alternator.  It’s better to have a lawyer handle the process of registering your trademark.  In either case, the work is more likely to get done right by someone who has done it hundreds of times and knows the small details that have to be carefully observed to make sure that everything works.  In the case of changing an alternator, getting things right is the difference between going home safely and getting stranded... or maybe doing serious damage to your car.    In the case of registering a trademark, doing things right may the difference between securing the exclusive use of your business name and losing that right… or worse maybe getting sued for infringing somebody else’s trademark.

2. If something does get messed up, you want to have somebody who will stand behind the work.

The other big advantage in hiring a lawyer to handle registering a trademark for you is that hiring a lawyer to handle registering a trademark means that there will be somebody to stand behind the work.  If you make a mistake in your trademark application that costs you the right to exclusive use of your mark, you have nobody to blame but yourself.  If you hire a lawyer to register your trademark for you, and the lawyer makes a mistake in registering your trademark, your lawyer has a large number of incentives, the least of which is the value of his own good name, to see to it that the mistake is fixed for you.

At the end of the day, if you end up with some sort of colossal mistake that costs you the right to use your business or product name, that mistake can cost you a lot of money.  When you hire a lawyer to handle registering your trademark, and the mistake is made by the lawyer, his malpractice insurance may be available to help you pay those costs.

3. It just isn’t worth the inconvenience.

The final big advantage to hiring a lawyer to handle registering your trademark is convenience.  Regsitering a trademark is handled by a part of the government called the United States Patent and Trademark Office (USPTO).  The USPTO is famous for long delays in responding to applications submitted by applicants for patents and trademarks.  When you file your trademark application, rather than waiting on the USPTO to respond by yourself, having a lawyer handle the registering of your trademark means that you have made the lawyer responsible for remembering that the USPTO is expected to respond.  You’ve made the lawyer responsible for following up if he doesn’t hear anything.  Lawyers who spend a lot of their time registering trademarks will have computerized calendaring systems specifically designed to remind them to follow up on the trademarks that they are registering for their clients.

You want to understand the costs of registering a trademark and the benefits of registering a trademark.  I’ll start with the costs of registering a trademark, because this is pretty simple.  The United States Patent and Trademark Office charges a minimum fee of $325 to file an application to register a trademark for a product or business that is already in the marketplace.  There is an additional $50 fee if you are registering a trademark with a paper application rather than using the online application system.  There is an additional $150 fee if the product is not in use, but you are reserving the business name by registering a trademark on the basis of your intent to use the trademark after registering the trademark.  This is the basic cost for government fees.  For reasons that I will explain later, I recommend that you hire a lawyer to handle registering your trademark.  This costs more, but you really do get what you pay for.

The benefits of registering a trademark are substantial.  A trademark is a distinguishing device (it can be a name, a drawing, a sound, a color, or a smell, among other things) that helps consumers identify the source of a good or service.  By registering a trademark, you are filing a claim with the government that helps to resolve disputes if there is ever a subsequent disagreement about who owns the device that you register as your trademark.

The first benefit of registering a trademark is conflict resolution.  In the event that you have a disagreement with another business about who owns your trademark and has the right to use it in the marketplace, successfully registering your trademark serves as a piece of evidence that you may be the actual, exclusive, nationwide owner.

The second benefit of registering a trademark is conflict avoidance.  When large companies are selecting names for new products and services, they will typically search the trademark register and avoid names or other trademarks that are already in use.  People want to make money.  They want to avoid trouble.  By registering a trademark, you help them avoid trouble by keeping them away from your business name.

The age-old rule that domain name registration is on a first come-first served basis contains one extremely important exception. That exception was created by anticybersquatting laws, such as the Lanham Act's Anticybersquatting Consumer Protection Act (ACPA). In addition, ICANN has propagated policy and rules under the UDRP that make domain name registration actionable cybersquatting if particular elements are met. Almost every day, I receive a call from a prospective client with the question: "Am I being squatted on?". My typical answer is it depends, and this answer is not meant to increase the likelihood of client sign-up or to generate fees but rather it truly depends upon the facts and circumstances. Determining rights in a domain name requires an analysis based upon trademark law.

The first issue to be addressed is the extent of the trademark rights, if any. An entity that uses a distinctive mark in interstate commerce has the right to use that particular mark in connection with the goods or services to which it pertains. That entity would have trademark rights. Therefore, identifying whether trademark rights exist at all is critical to any cybersquatting analysis. In fact, the first element under the ACPA and the UDRP policy requires trademark rights. These trademark rights do not necessarily have to based upon a trademark registration with a governmental entity such as the United States Patent and Trademark Office, but rather can be based upon a prior use of a distinctive, rather than generic or merely descriptive, mark in interstate commerce. This determination in and of itself is an extremely fact-dependent issue, and it is particularly less clear when dealing with descriptive marks, which are only entitled to protection if they have achieved acquired distinctiveness through secondary meaning. When determining whether a mark has acquired distinctiveness, one must look at when the first use of the mark occurred, how long the mark has been used, to what extent the mark has been advertised and marketed, to what extent consumers have come to recognize the entity as the source of the goods or services associated with that mark, and related matters. Assuming you can establish trademark rights prior to the registration of the domain name, you may be in a position to assert cybersquatting claims.

That said, depending upon the strength of the mark, how the current registrant is using the domain, and other facts can provide additional support for a cybersquatting claim. Moreover, in cases where the cause of action for cybersquatting is not entirely certain, there may be leverage items worth employing that could cause the apparent cybersquatter to no longer wish to retain the domain name. For example, placing the domain name owner on notice of the trademark owner's claim to rights in the domain by notifying the domain name owner of an affirmative obligation to make any potential purchaser aware of the same may entice the domain name owner to transfer the domain outright, consider negotiating a transfer for renumeration, or lead to other information that will be valuable in assessing what next steps are required.

Ultimately, other than in a case of hacking or domain name conversion, trademark rights are a necessary prerequisite to any cybersquatting claim. Therefore, business owners are well-served to ensure proper establishment of a trademark, use of a trademark, registration of a trademark, monitoring of a trademark and enforcement of a trademark in order to be in the best position should a domain name issue arise. I've said it before and I'll say it again, absent trademark rights, you do not have a cause of action for cybersquatting. That being said, do not overlook the fact that trademark rights exist under common law, as well as registration with a governmental entity, and an experienced trademark attorney can help you identify what rights you have and the extent to which you may be able to enforce them in a cybersquatting action.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm specializing in complex litigation, intellectual property matters, internet law and trademark matters. To learn more about trademark rights in descriptive trademarks, you should contact a trademark lawyer with experience in domain name trademarks.

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Hope you enjoy the read as much as I did and please if you have something to say, use the comments form below to let everyone know your thoughts.

Have a great day!

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My user name on Facebook happens to be a registered trademark for a restaurant...?

They sent me this email:
"You are using our registered trademark business name as your user name here on Facebook. I just wanted to let you know that we will be taking steps with Facebook to try and reclaim our name. It will help matters if you deactivate your account or if you contact Facebook to see if they will let you select a different user name so we can rightfully use our ****** name."

Can they make me change my user name even though I have had this user name for well over a year?

Patent, trademark and copyrights have been used interchangeably by a lot of people without really realizing that each term is different from the others. Although all of it protects the creative and intellectual rights of a person or a company, each term is inherently separate from the others.

Here is a general comparison of the three.

Patent

Patent refers to the exclusive rights given by the State to an inventor for a limited amount of time in exchange for the disclosure of the invention.

Normally, a patent application contains claims defining the invention that should be new, inventive, useful and industrially applicable.

The exclusive rights given to a patentee protects his/her invention from being made, used, sold or distributed without his/her permission.

The following are the different types of patents:

• Provisional patents – A provisional patent application (PPA) is used when you have an idea but do not have the resources needed for filing a patent. This will establish a date of application. Just be careful as the actual patent should be exactly the same as the provisional patent.

• Utility patents – This is the most common patent which is usually valid for about 20 years except for drugs, medical equipment and devices, etc.

• Plant patents – Cover plant varieties which have been asexually produced. This includes seedlings, hybrids, etc.

• Design patents – Covers new original ornamental design for a product to be manufactured.

Trademark

This refers to a distinctive logo or indicator that is being used by an individual, company or other entities to identify that the product or services with which the trademark can be seen comes from a unique source, and separates that product or service from other entities.

Trademark is an intellectual property, usually a name, word, phrase, design, image, logo or a combination of said elements.

Trademarks are usually assigned the following symbols:

• TM – Unregistered trademark. This is a mark used to promote or brand products.

• SM – Unregistered service mark. This is a mark used to promote or brand services.

• ® - Registered Trademark

Copyright

Copyright gives the creator of an original work exclusive right in relation to that work for a certain period of time. This should include publication, distribution, and adaptation.

After the period lapses, the work is said to enter public domain.

Examples of works where copyright is applicable to are music, movies, software, paintings, drama, books and many more others.

Copyright applies to all expressible ideas or information which is substantive, discrete and fixed in a medium.

Copyright also recognize the moral right of the creator to be credited for his work.

It has been internationally standardized and the exclusive rights to a work can last fifty to even a hundred years after the creator’s death, or a shorter period of time for anonymous and corporate authorship.

However, even if there is a copyright, it cannot cover the whole subject matter. For example, with regard to a copyrighted book; other entities cannot copy the wordings from the said book. But they are free to read the book and publish some of the idea or concepts in their own interpretation and words.

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Visit our website at http://www.attorneyservicesetc.com/practice_area/Intellectual-Property-Defined.html to help you understand patent, trademark and copyright. Call our toll free number for legal assistance.

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How To Secure Your Business, Products And Ideas

It is natural for people to come up with different kinds of ideas in order to make some money. Some invents different kinds of revolutionary products with different purposes. With an original idea in their mind about a revolutionary product, the most natural thing to do is to turn that idea into a reality and make it available in the market to make some profit out of that idea.

However, starting a business is not as simple as it seems. You have to consider that there are laws for it and these laws are very different from any other kind of laws available. The intellectual property law is made to protect the ideas, businesses, trademarks and inventions. However, before you start claiming that the certain invention was your idea and you first invented it, you have to realize that in order to legally claim that it is your invention you first have to patent it first in the United States Patent and Trademark Office.

The patent and trademark laws are unique and require a different kind of lawyer for it. First of all, you have to know what the US Patent and Trademark Office is all about. You have to know what they do, and what its mission is in order to fully understand why it is important to get your business, and inventions patented.

The US Patent and Trademark Office promote strengthening the national economy by implementing the laws on patents and trademarks. The PTO is also responsible for advising the President of the United States and its administration as well as the Secretary of Commerce about the implementation of patent, copyright and trademark protection in the country. In short, they are responsible about the every aspect of intellectual property.

The Unites States Patent and Trademark Office or the PTO employs more than 7,300 employees. Roughly about 3,000 of its employees are patent examinees and 400 are trademark examining lawyers who are responsible on the legal aspect of patenting and copyrighting. The rest of the staff are support staff who assists the main personnel of the PTO. The patent examiners are engineers and scientists who don't necessarily have law degrees.

You have to consider that there are quite a lot of patents to companies pouring every year in the PTO. In fact, as of March 2006, the PTO has issued more than seven mi
1000
llion patents worldwide is continuing to increase.

If you want to patent a certain invention, you have to consider that it is a complicated process. If you don't know anything about the intellectual property law, you have to consider getting a lawyer who is an expert on this field. The lawyer will be able to advice on the different patents and they will be the ones who will be responsible for assisting you with the step-by-step process in the PTO in order to patent your invention or product as soon as possible.

When it comes to starting your own business, you have to consider that you will need a trademark for your business in order for consumers to identify if the product they are purchasing comes from your company. Your business should have a unique logo. The trademark should also be registered with the PTO in order to protect your business from piracy. The PTO personnel will examine your business logo and business name and see if it is unique and no other business has the same name and a similar trademark. There is a step-by-step process on which the PTO will examine your business trademark. There are also certain rules they apply whether your trademark is acceptable or not.

These are the things you have to remember when you are trying to get your invention or your trademark patented or copyrighted. As you can see, it is very important that you should patent your invention and copyright your designs in order to protect it from piracy. By patenting it, you can be sure that no one will copy it without your permission.

Unauthorized copying of your products and even your trademark is illegal and is within the bounds of the anti-piracy law. Protect your business and your ideas with the US Patent and Trademark Office.

By: Chet Lawrence

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