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Trademark Best Practices: Getting It Right the First Time

On the surface, registering a trademark seems like a rather straightforward process. You have an original name, slogan or logo, pay the fee, and voila! You are registered.

Well, not exactly.

Being "original", insofar as the Lanham Act and the United States Patent and Trademark Office (USPTO) is concerned, is a dicey proposition. You can't be too descriptive. You can't be confusing. In fact, the only surefire way to guarantee a successful registration is to completely make something up. For instance, naming your product "xchgyif" would make you fly through the registration process. But as a practical pointer, you'd likely want a product name your non-Slavic customers could actually pronounce.

The key is finding that fine middle ground where originality meets function.

Being too descriptive: Your trademark idea can't be "merely descriptive". For instance, you can't trademark the term "brown shirt" if you are selling brown shirts (now, if you've associated "brown shirt" with, say, kitty litter, you may have a shot - more on that in a later article). Your name must be unique and distinguish your product from someone else's. Once you find that unique name, the next thing you have to do is find out whether it's 1) already registered, or 2) already in use in commerce. That's where a professional trademark search usually comes in handy. Prior use, registered or not, comes in both identical and substantially similar forms. Identical is easy - you simply cannot just rip off someone else's established mark. Substantial similarity is where the shoulder meets the curb.

Being too confusing: If your mark is too substantially similar to an already existing mark, you run the risk of rejection by the USPTO. Minor differences tend to be insufficient to pass muster. As an example, simply changing the name of your business by one letter is not enough to establish sufficient originality (for instance, the business name for a collegiate apparel store such as "fanz zone" cannot be registered because "fan zone" already is). It takes more than a single letter to ward off the evil spirits of substantial similarity. This can also apply to drawings (which is the USPTO's fancy lingo for a logo), but less so than word-based marks. Making a drawing unique is much easier as variations can be relatively infinite. Color and design differences figure into the equation when discussing the originality of drawings.

As a practical business matter, it is important to ensure that your trademark, whether it's a name or a drawing, is both nondescript and non-confusing. For some very good and economic reasons, every new business should take time to establish a legally workable business name or brand name. Prudently, this determination should be made before major resources are expended creating a brand that can later be legally pulled out from under your business. It would be quite the financial setback to have spent millions of dollars (or euros) creating goodwill and positive name recognition to only have a federal court issue an injunction and order the payment of damages for your past use of another entity's mark. Not only are you out of your mark, you are also likely out substantial sums in legal fees.

Article Source: http://www.newagelivingarticles.com

This helpful article is provided by Nathan Moore, proprietor of MooreTrademarks.com, and a practicing attorney admitted to the Tennessee bar, the United States District Court for the Middle District of Tennessee, and the Court of Appeals for the Sixth Circuit.

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