Archives For common law trademark

One of the earliest decisions a new business owner must make is what to call the new venture. There are many considerations including marketing, branding, and others but in this post we want to cover some of the legal considerations.

First, check the name availability with your state.

In order to form a LLC or Corporation, you must file formation documents with your state’s Secretary of State. As a result, the Secretary of State maintains records on all active and inactive businesses registered in the state.

This is often the first place you should search for name conflicts because a Secretary of State will not allow two active businesses to have identical legal names.

For example, if you want your legal name to be Hot Spot Technology and someone already registered a business with that name your application will be denied. But you can change your name to Hot Spot Technologies and get it approved (at least as the company’s legal name with the state).

But you have to look further!

Second, check the USPTO records.

While state business registries are concerned with identical names, trademark law is concerned with “confusingly similar” names.

The first trademark database to search is the United States Patent and Trademark Records. You should read our post on how to search the USPTO database, but in short, what you are looking for is any registration that is confusingly similar to your intended name that is also in a similar market. For example, if Hot Spot Technology sold grass seed, and your company with the same name wanted to sell computer chips, you can still probably get it approved.  However, if you also wanted to sell grass seed, you couldn’t get a registration on your favorite name or even the Technologies version mentioned above because the marks would be confusingly similar and in the same goods/services area.

So, while you can have a legal name of Hot Spot Technologies, you’d have to have a different name under which you do business (a DBA or Fictitious Name).

But that’s not all!

Third, check the common law.

As you may have read on this blog before, trademark law is comprised of both statute and common law. As a result, you need to run a common law trademark search. The post mentioned above covers this too, but the short version is you need to run internet searches, look in trade magazines, newspapers, and more, all to make sure there are not any unregistered marks out there that might cause you problems.

Ready to File?

If you are ready to file for a federal trademark, you should check out MightyMarks.com; our online digital trademarking service.


Image: Thinkstock/olm26250
*This article is very general in nature and does not constitute legal advice. Readers with legal questions should consult with an attorney prior to making any legal decisions.

If you pay attention to labels and product packaging you might begin noticing lots of little icons. Each icon has a legal significance and understanding the differences among them is really important for entrepreneurs and business owners. In this post we will cover the five most common icons found on labels and packaging and explain what they mean and how and when you can use them.

Service Mark (SM) and Trademark (TM)

As we have mentioned multiple times on this blog, once you begin using a name, logo, or slogan in interstate commerce, you can claim common law protection of that brand. Common law protection simply means you can petition a court to enforce your trademark rights, however, it doesn’t mean you have a federally protected trademark.

In connection with these common law trademarks are the SM and TM symbols. TM stands for trademark and SM stands for service mark. This is usually (but not always) an indication that the brand is not yet federally registered. But the owner is still claiming the rights to the name.

® – The “Circle R”

If a mark owner takes the next step and seeks federal registration of a trademark or service mark, they can then begin using the “Circle R” icon, but only after the USPTO actually registers the mark.

If you see a mark using the ® and you want to use a similar mark, you should definitely research the mark in the USPTO database to see if your use would conflict with that prior registration.

© – The “Circle C”

The Circle C (sometimes written out as “Copyright 2014”) is an indication that the creator or owner of that work is claiming copyright protection. Unlike trademark law, the owner of a creative work can use the Circle C icon as soon as they have made an original work of authorship, regardless if they have a copyright registration for the work at question. In fact, the vast majority of works subject to copyright protection are not registered simply because registration is not required to claim copyright (although registration is strongly encouraged).

Pat. Pend. or U.S. Patent No. ###

If an inventor begins selling an invention prior to receiving a patent on the invention he or she will likely list in tiny text Patent Pending (or just Pat. Pend.) on the product to give notice to the world that a patent application is pending with the USPTO. If granted, the inventor can then list “U.S. Patent No.” and then the patent number on the product to provide notice of an actual registration. In fact, the law requires this notice if the inventor wants to seek full damages in a patent infringement lawsuit.

If you are confused as to what icon to use on your labels and packaging, or if you need help securing your trademark rights, then visit MightyMarks.com to learn more!

Image: Thinkstock/Mario Salis

*This article is very general in nature and does not constitute legal advice. Readers with legal questions should consult with an attorney prior to making any legal decisions.