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  1. #1
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    Default Protecting the Brand of a New Company

    I wanted to know if anyone can give me some answers on branding/copyrights/trademarks or recommend a web site that I can get some legal advice. I am in the process of starting a small online apparel company and I wanted to make sure my brand is protected and I don't violate another brand's rights. I am going to use the fake name of "Burning Tree Apparel" as my "brand" name for this example. First, if I want to ensure that my brand is protected, do I want to get the brand trademarked or copyrighted. From what I read on Legal Zoom it should be copyright. Second, if someone already has the domain burningtree.com registered and I want use burningtreeapparel.com is that a conflict. I have more questions but I will start with those. I have a few follow-up question but I will start with those.

  2. #2
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    Default Re: Trademark and Copyright

    a couple sites that will provide some info:


    http://www.uspto.gov/faq/trademarks.jsp

    http://www.copyright.gov/

    there is a lot in each of those sites. Your situation involves a trademark issue and not a copyright issue.


    From the copyright site, subheading faq's:

    How is a copyright different from a patent or a trademark?
    Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.


    Your concern is securing the rights to the name (identifier) of your business entity. That falls under trademarks and not copyrights.

  3. #3
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    Default Re: Trademark and Copyright

    As JK says, your issue is entirely TRADEMARK no copyright. I doubt LegalZoom actually said that only that you misinterpreted what they had (which is the major danger of relying on them for anything).

    You can use a trademark (you get trademark rights from using them in commerce, registration is an additional protection) as long as you are not infringing on another's mark. This means you aren't in close enough of the same space as to cause confusion (or in some cases of famous marks, dilution of another's famous mark. I can't make a floor wax and call it Coca-Cola for instance).

    Domains are a completely different matter. They are not controlled by any sane rule of law. The rule is that you can grab an unused domain as long as you have a good faith reason to have it. Having a trademark or company name is usually sufficient.

  4. #4
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    Default Re: Trademark and Copyright

    Quote Quoting flyingron
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    Domains are a completely different matter. They are not controlled by any sane rule of law..
    that is the most ridiculous thing I have read in awhile.


    Not saying it isn't true, just ridiculous and that is what the real problem is with it; it is true

  5. #5
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    Default Re: Trademark and Copyright

    Quote Quoting bern75
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    First, if I want to ensure that my brand is protected, do I want to get the brand trademarked or copyrighted.
    None of the above though between the two, trademark is probably closer to what you are asking about. A trademark denotes a brand either in words, symbols or both and can be used without anything further than making sure it is not currently registered. An unregistered trademark is denoted by the letters TM usually in superscript. To fully protect the brand a trademark should be registered (denoted by the letter R enclosed in a circle) which allows you to control how it is used and by whom.That said, unregistered trademarks may still be protected in some cases. Make sure to read about registered and unregistered trademarks and search the trademark data base to see if it is already in use.

    Link to basic word search for US Trademark data base here: http://www.uspto.gov/sitesearch.jsp note: nonworking link revised.... TWICE! (sheesh who thought the gov't shutdown extended to the web lol) click on the trademark link

    Quote Quoting bern75
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    Second, if someone already has the domain burningtree.com registered and I want use burningtreeapparel.com is that a conflict. I have more questions but I will start with those. I have a few follow-up question but I will start with those.
    No, not a conflict. A good article about domain name legalities is here: http://www.bitlaw.com/internet/domain.html

    And a word of warning...... There are unscrupulous individuals who will buy a domain name to hold hostage if they think someone wants that particular name. Then they offer to sell the domain name for an inflated price. All perfectly legal for the most part. Announcing a domain name on the internet when you have not yet secured it, is generally not a good idea.

  6. #6
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    Default Re: Trademark and Copyright

    [QUOTE=shortcake;751856]None of the above though between the two, trademark is probably closer to what you are asking about. A trademark denotes a brand either in words, symbols or both and can be used without anything further than making sure it is not currently registered. An unregistered trademark is denoted by the letters TM usually in superscript. To fully protect the brand a trademark should be registered (denoted by the letter R enclosed in a circle) which allows you to control how it is used and by whom.
    That said, unregistered trademarks may still be protected in some cases.
    actually, a unregistered trademark is protected just as a registered mark is. There are benefits to registering the mark though but registration is not required for one to claim and defend a mark.

    Here is the USPTO's quick answer to why one should register with the federal TM office (there are often state TM offices and registrations possible as well)

    Why should I obtain a trademark?

    Here are some specific benefits of having a federally registered trademark:

    1. Constructive notice nationwide of the trademark owner's claim.
    2. Evidence of ownership of the trademark.
    3. Jurisdiction of federal courts may be invoked.
    4. Registration can be used as a basis for obtaining registration in foreign countries.
    5. Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign goods.

      • See U.S. Customs Service
      • See Computer Crime and Intellectual Property Section of the Department of Justice

    Back to top

    And a word of warning...... There are unscrupulous individuals who will buy a domain name to hold hostage if they think someone wants that particular name. Then they offer to sell the domain name for an inflated price. All perfectly legal for the most part. Announcing a domain name on the internet when you have not yet secured it, is generally not a good idea.
    well, sort of kind of. Cybersquatting is frowned upon by ICANN and something as simple as filing a complaint with ICANN and requesting the name be turned over can result in a transfer of ownership of the domain name.

    Along with that, there is actual law to address this as well; the Anticybersquatting Consumer Protection Act.

  7. #7
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    Default Re: Trademark and Copyright

    Filing a domain dispute will cost several thousand dollars. Better to get your domain ducks in a row as previous pointed out before you get too attached to a name.

  8. #8
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    Default Re: Trademark and Copyright

    Quote Quoting flyingron
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    Filing a domain dispute will cost several thousand dollars. Better to get your domain ducks in a row as previous pointed out before you get too attached to a name.
    I have heard of cases where the mere act of doing a whois search for domain availability has resulted in the name being scooped up and registered to another party before that party could purchase it. I am talking a time period of several hours to a day or two.. Technically that should never happen but apparently, unscrupulous spiders lurk everywhere. I don't know if it is still the case but in the past there was some irregularity in the ICANN process where a domain name could be obtained for a certain length of time without any exchange of money hence the registree held ownership for a period of time before payment was due but was still able to sell it as a hostage. To the OP, If your domain name is available my advice would be to buy it on the spot. What I said sounds odd, but trust me it has happened.

    update- what I am referring to not cyber squatting but domain tasting. In some cases this was done by those offering registration services after a whois search. I apologize for the use of a wiki article of unknown authority or substance but to the best of my knowledge the info presented in the following is factual.
    http://en.wikipedia.org/wiki/Domain_tasting

    ICANN has taken steps to control it's use. I still do not advise that you make your intentions to buy a particular name known to the public until you have secured the name.

    Quote Quoting shortcake
    View Post
    To fully protect the brand a trademark should be registered (denoted by the letter R enclosed in a circle) which allows you to control how it is used and by whom. which allows you to control how it is used and by whom.That said, unregistered trademarks may still be protected in some cases.
    @jk thank you for clarifying for the OP what I meant in that part of my quote that you left out. I'm sure he will find it helpful. Still the protections afforded between registering and not registering are not the same. While an unregistered trademark may be acceptable in local or regional use so that such trademarks may be used by several entities separated by geography, that is not the same as the protections afforded a registered trademark which would exclude use by anyone but the trademark holder. At least that is to the best of my understanding.

    To the OP- best of luck in your venture

  9. #9
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    Default Re: Trademark and Copyright

    @jk thank you for clarifying for the OP what I meant in that part of my quote that you left out.


    I did not leave anything out that clarified your statement in regards to what I posted. I addressed this:

    That said, unregistered trademarks may still be protected in some cases
    which is simply wrong. A valid trademark is protected whether it be registered or not. There may be varying rights that registration makes easier to prove but it does not endow the mark with superior rights simply due to the registration. To explain, if I used the letter Z to represent my company starting in 1985 and some other company registers that same mark in 2010, their registration does not remove my rights. My rights are exempted from any rights afforded that company due to their registration. As well, I can still contest the application if I believe their use infringes on my rights to the mark.

    if I use the mark on a national level, guess what; it is my mark for national use. My use allows me to contest the application and it will cause it to be denied registration. Of course, if I fail to defend my rights of an unregistered mark, I can lose those rights but guess what; the exact thing applies to a registered mark as well. It's a stand up for your rights lest they be lost issue.

    Registration makes the claim to the mark easier to prove. It provides presumptive facts concerning the mark although presumptions are rebuttable. It allows for damages not available to those suing based on a not registered mark.




    In addition, you also realize that there is a 5 year period after the mark is registered on the Principal Register before it becomes incontestable, right? Registration itself does not impart an irrefutable claim to the mark. It takes registration, use, and time to reach that point. and of course initial registration for most marks must be made on the Supplemental Register which does not afford the same protections as a mark (including the endowment of the national rights claim) on the principal register but you already knew that, right? and that the issues you are speaking of are afforded to those marks on the principal register and not the supplemental register, right? and to be moved from the Supplemental Register to the Principal Register, the mark has to have gained true identifier status, but you already knew that too, right?

  10. #10
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    Default Re: Trademark and Copyright

    Thanks for the clarification jk I stand corrected.

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