Why Do a Comprehensive Trademark Search?

Photo by Patrik Michalicka https://unsplash.com/@patrikmichalicka.

Applying for a trademark registration can be easy or a minefield depending on the uniqueness, or lack thereof, of your proposed mark.

Before applying for a trademark registration, I would highly recommend that you have a comprehensive search performed on the mark if you plan to use it as a national brand or to apply for international trademarks. A trademark search for these purposes should not be limited to looking through the U.S. Patent and Trademark Office (USPTO) database to see what has been registered. It should also include having a comprehensive search performed to see if there are marks throughout the country which may already be in use but not registered with USPTO.   Remember, you do not have to register a trademark with the USPTO to have a common law trademark and the right to protect it from infringement.

Registering your trademark with the USPTO gives the added protection of the presumption of your ownership of the mark unless someone else can prove they had a prior ownership. It also gives you the right to federal statutory damages for infringement of your mark which are not available if the mark is not registered. And finally, registration of the mark allows you to seek attorney’s fees from the infringing party if you are successful in your claim.

A comprehensive trademark search reports on competing marks that could be problematic in your application process.  It looks at state business registrations, social media, search engines, tax filings, etc. to see if there are any business or organizational names (registered or not) that are similar to your proposed registration mark. The report provides an analysis of the risk involved with submitting an application for your mark. If the risk is non-existent or low, then the risk of facing opposition upon review by a USPTO assigned examining attorney, or during the publication period, should be low. However, if the risk is high, you may very well face opposition when your application is reviewed by the examining attorney, or during the publication period if it gets past the examining attorney. You may even want to consider making changes to the mark before applying if the results of the comprehensive report show a high risk. Remember, USPTO filing fees for trademark applications are non-refundable, so save yourself the expense and aggravation and get a comprehensive trademark search done.

#trademarkregistrations #branding #brandidentity #trademarks #trademarksearches #brandmanagement

Read the Terms of Service BEFORE You Install/Update.

Photo by Bram Naus. https://unsplash.com/@bramnaus

My apologies for the long time since my last post! It’s been a pretty busy few months full of deadlines and projects.

Anyway, picking up where I left off, I wanted to talk about the latest trend where some companies are requiring users of their software to grant them ownership of the intellectual property created while using their software. Basically the language in their terms of service agreements says that if you install their software onto your computer hard drive, or download their app to your smartphone, you will be granting them the right to use whatever you have created or performed after the installation, in whatever way they wish to use it, and you would have no recourse in stopping them because you agreed by proceeding with the installation with knowledge of their intent.

I know it is cumbersome and even seemingly overwhelming when you see all the written material associated with the terms of service, but trust me you want to take the time to read the language before you go any further in the process. If you do not read the language to make sure you are in agreement with what limitations you are imposing upon yourself, or what rights you are giving away in regards to your intellectual property, you can not claim lack of knowledge, ignorance, or lack of consent if you find out your material was used in some manner that you do not agree with down the road. Or at least you would need an incredibly novel argument to get around it.

The main reason many of these companies are implementing this new language into their agreements is they want to help train the artificial intelligence data to cue to their products in searches. They do this by using intellectual property to manipulate the algorithm of the searches so that searches produce accurate results. However, it raises a multitude of copyright and trademark infringement issues. By putting this language in the terms of use, it alleviates, or at the very least minimizes, these claims.

For purposes of being a creative who is using any program to create a manuscript, design, or even just a memo or letter, read the terms of service or use from your last update for whatever program you are using now if you did not read it before, and make sure you read the terms if you need to update now.