Small Business Reading Room

Saturday, December 18, 2004

What's in a Name? Protection.

So what's in a name?

Here are some things you can do to help protect your chosen name from harm.

MAKE IT UNIQUE:
There are many ways to come up with a name. You can pay a consultant to help provide a disciplined approach to creating a name or, if you prefer, you can come up with one that works for you on your own. I discussed some possibilities in a previous post.

GOOGLE IT:
Once you have selected a name, or a list of names, you should check carefully to see if anyone else is using a similar name for a similar product or service. This is to prevent trademark problems down the road.

CLEAR IT WITH THE USPTO:
The United States Patent and Trademark Office maintains a registry of trademarks and service marks that are protected under U.S. Law. You may perform a preliminary search of the Trademark database online. I say preliminary because there are extensive errors in the database. It should not be considered authoritative by any means. There are companies that can do a hand search of the Federal archives and of the State Databases as well for a fee. If you do not feel comfortable that your mark is clear of any competing marks, you should consult a qualified intellectual property attorney.

REGISTER IT WITH THE USPTO:
Ownership of a trademark is not determined by who owns the trademark registration. Trademark registration is allowed to the entity that owns the mark. You must prove your ownership of the mark in order to register with the Patent and Trademark Office. Very generally speaking, you must have a unique mark within your classification of goods and services and you must have been the first to use it in interstate commerce. The USPTO makes available a FAQ about trademarks that is very informative.

USE THE NAME CONSISTENTLY:
The date you use your chosen name in commerce is called, logically, your first use date. This date is one of the primary determinants of trademark ownership. Another factor in determining ownership is continuous use in commerce. When you put your name on a website, a billboard, an invoice or flyer, you are using it in commerce. You should document these uses as you go. This is usually very easy to do because you are putting the name out in public view.

BE VIGILANT IN PURSUIT OF OFFENDERS:
If a trademark is left undefended, the rights of its owner may be diminished. Keep an eye on who might be using your trademarks in commerce. This has become much easier with the advent of the internet. Of course, the internet also brings a global market together. In that respect defending your marks may be more difficult. Google has a number of special searches that can help you find links and usages of your mark.

These are just a few of the things you can do to protect your trademark. You may want to look into creating a Delaware corporation to hold your trademarks. That way you can take advantage of the Delaware General Corporation Law and the corporation, if it does no other business here, will not even have to file a State income tax return.

posted by Larry at 1:11 PM - permalink 0 comments

Small Business Reading Room

What's in a Name? Protection.

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