Trademarks—What You Need to Know
By now you’ve probably gotten a whiff of the unsavory name-stealing scandal involving our beloved Jennine Jacob, founder of Independent Fashion Bloggers, Eat, Sleep, Denim, and The Coveted—and some other new site which has opened up shop under the same name as Jennine’s personal blog. I refuse to even mention the other site’s name here because I will not promote it or assist in traffic generation by embedding a link on G&G. Should you like more details regarding the situation, read Response from TheCoveted [dot] com : Don’t talk about us or we’ll sue, on the only true The Coveted, at http://the-coveted.com.
The reason why I mention the brouhaha above (which has become a legal battle), is because as bloggers, we all have something to learn from this: a copyright symbol © on your blog does not protect you from trademark infringement. I think we all probably thought that. Well, it’s not true. Your copyright protects your content, not your identity. I’ll cover copyright in more detail in a future post. First, let’s talk about trademarks.
Oh, and one thing: I AM NOT AN ATTORNEY AND THIS DOES NOT CONSTITUTE LEGAL ADVICE. Please consult a trademark attorney for legal advice regarding copyrights and trademarks. You can find a trademark lawyer to help protect your identity.
This post is intended to heighten awareness. You will have to make your own decisions regarding any action you may take.
Claim Your Trademark
In Signature9’s article covering the current situation with The Coveted, Eminent Domain Name: What To Do When Your Brand Is Coveted, a very straightforward explanation of trademarks is given. Read carefully, lovelies:
“There is probably a claim [for Jacob] at common law,” says Philip Marcus, a small business lawyer in Maryland who specializes in intellectual property.
“State/common law trademark laws may protect the first party to use a name,” Fichman explains. “A company can send a cease and desist letter based on state or common law trademarks even if that company does not have have a federally registered trademark.”
…The first step to protecting the name you’ve built online, or are planning to build, is to be vocal about it. [Robert] Siminski [a Michigan patent and trademark attorney] suggests even a simple statement on the homepage of your website can “put the public on notice that you’re claiming rights to the trademark.” The domain name alone may not be enough, but merely making that statement strengthens a website owner’s position. “It’s not as good as a federal registration,” he says, “but better than not outwardly claiming trademark rights.”
Federal trademark registration does require an attorney and costs between $1000 and $1200, inclusive of attorney fees, for registrations which are accepted. Staking your claim to a trademark costs nothing.
Notice that Jennine’s header now sports a trademark (TM) symbol. She has staked her claim publicly. Whether or not she ever registers her trademark, she was clearly the first person to use the name, and now, with the TM symbol, she has claimed it.
For most hobby bloggers, the cost of registering a trademark may not be justifiable or even necessary. But since you can claim your name—your blog’s unique identity—for free with the addition of the trademark symbol, well, all I’m saying is I claim “Grit and Glamour” and “Grit & Glamour” as my trademarks. And have documented it.
Trademarks According to the U.S. Patent and Trademark Office (USPTO)
In researching trademarks, I found the USPTO to be helpful. Since I am a United States citizen, the USPTO is the governing body regarding trademarks. International readers, be sure to check with your country’s laws and rules regarding trademarks.
The following FAQs (and more) can be found at: http://www.uspto.gov/faq/trademarks.jsp#_Toc275426712
Must I register my trademark?
No. You can establish rights in a mark based on use of the mark in commerce, without a registration. However, owning a federal trademark registration on the Principal Register provides several important benefits.
Do federal regulations govern the use of the designations “TM” or “SM” or the ® symbol?
If you claim rights to use a mark, you may use the “TM” (trademark) or “SM” (service mark) designation to alert the public to your claim of ownership of the mark, regardless of whether you have filed an application with the United States Patent and Trademark Office (USPTO). However, you may only use the federal registration symbol “®” after the USPTO actually registers a mark, and not while an application is pending.
Starting a new site or blog?
Make sure your name isn’t already in use. There’s a more definitive way than Googling to determine this. Use the USPTO’s Trademark Electronic Search System (TESS).
Still not quite sure about all these symbols?
Wikipedia gives a simple explanation:
A trademark is designated by the following symbols:
- ™ (for an unregistered trade mark, that is, a mark used to promote or brand goods)
- ℠ (for an unregistered service mark, that is, a mark used to promote or brand services)
- ® (for a registered trademark)