Securing Your Intellectual Property Rights
Choosing A Mark
Your mark or name must be distinct. If you've created your own brand-new fictitious word, or a 'fanciful' or unexpected synthesis of other words, you're probably on safe ground, though you will still need to guard your mark lest it become generic (Xerox, Windsurfer, Rollerblade, aspirin, and escalator were all trade marks) and lose legal protection. If your trade name suggests something unique or desirable about your product (Tiger Balm, Prism Kites), it may also be eligible for registration. Avoid generic descriptive names using words ordinarily used to describe your type of business or the quality of a business--Good Foods, Village Pharmacy, New York Pizzeria--that may slip into the public domain or be challenged by a competitor, and be careful about using foreign words in your trade name if there's a chance that a business where that language is spoken might use the same name.
Searching For Conflicting MarksYou'll need to find out if anyone else has already claimed rights to your name or mark. Unfortunately, there is no universal registry, so you'll need to search your national register (here in the U.S., the nearest Patent and Trademark Depository Library), any state or regional registers where you do business, as well as the Internet, for conflicting domain names; and also try to unearth any conflicting unregistered 'common law' marks. You may submit an application to the U.S. Patent and Trademark Office without having conducted your own search, but your fee won't be refunded even if the P.T.O. finds a conflicting mark, so it's best to do your own homework before you apply.
Commercial Search Services
Claiming and Maintaining Your Mark
Once you choose a distinct mark, register it as soon (and publicize it as broadly) as possible. Establish it as a mark used in commerce, or declare your intention to use it in commerce, early and often. Mail yourself a certified letter including your application and file it without opening it. Document all your correspondence and calls pertaining to your application, in case a question arises whether you or someone else used the mark first. Display "TM" and "SM" for unregistered trade and service marks, respectively; and as soon as your mark is registered, adopt the ® as a sign of your right to it.
Guard the mark against infringement:
- Print your mark in distinctive typeface, like capital letters, bold type, or italics.
- Always use your trade name as an adjective or noun (Spacely Sprockets, Spacely Sprockets office), not a verb (look what happened to the Xerox mark when people started xeroxing instead of photocopying with Xerox machines).
- Look out for businesses with similar marks arriving in your location, and for new applications to register similar trade names.
Online Intellectual Property Resources
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