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Articles from the tag of Intellectual Property
Trademarks - who needs them?
Posted by: Joseph E Poff, CPA CITP from Auburn Software, Inc. on Tuesday July 20, 2010 at 11:22 PM   (-07 GMT) | Comments (0)
Tags | Businesses, | Intellectual Property | Categories: | Businesses - Operations, | Businesses - Product Development, | Intellectual Property - Trademarks
Trademarks - that really doesn't apply to me. Or does it?

Why is it that the things you know the least about are the things that will get you. For tests - I'd shy away from the parts that seemed like I didn't understand - but then I learned that I could get a bigger percentage increase in my score by studying those parts rather than perfecting my knowledge on something I already knew. I felt better when I studied the stuff I already knew - I could even do something else while I was doing it - but not a smart way to do it. Not having a concept about trademarks could be one of those gotcha's.

For a relatively small fee - considering the downside of not doing it - you can file with the US Patent and Trademark office your business or product name. Prior to doing so you'll want to make sure that your name isn't already taken. If it's a pretty straight forward name - then it's probably already taken. What are the consequences of using a name that's already registered? How about all the profits you made from the use of that name - yep - all of the profits. Oops.

So, let's say that you started a company and made hot dog carts in 2008 and called the carts Joe's Hot Dog Cart. You start selling them and man oh man - they are selling like crazy. In 2010 you surpass 3 million in sales and it looks like it will go higher.

Only one problem - someone else is making hot dog carts and while their sales are only 2 a year and yours are 2,000 - they filed and received a trademark from the USPTO in 2007 on the name - believe it or not -  Joe's Hot Dog Cart.

So, now the person that has the valid trademark finds out that you - oh, you lucky dog - you've got a very successful business now using his trademarked name. Boy, the attorneys smell money here. You're in some hot chili.

Another situation is where you're marketing the hot dog carts and this time you were smart enough to get a trademark on it. You have a website - JoesHotDogCart.com and things are great until you discover one day there is a website JoesHotDogCart.net or Joes-Hot-Dog-Cart.com or one of the many variations. Having your name trademarked gives you vast power in forcing whoever is hosting the offending site. I've had ones shut down in less than 24 hours.

On those kind of sites, it's not just that they may be trying to sell a competing product - they may be a look a like site where they are taking orders and money from the poor souls that go to the .net version of your site instead of the .com. If you've got a .net site - well, unless you have the .com site too - people will 'really' get confused there. Registering your trademark goes a long way toward protecting you and your customers. As a side note - it's probably a good idea to register .com's and .net's when you register a name.

The protection of your trademark will continue for years and will be an additional valuation item of your company.

To file an application, you need to choose a class for your trademark. For example the hot dog carts would probably fall under class 7 - machines and tools. So, someone else could file under another class such as class 2 - paints - and then they could use Joe's Hot Dog Cart for a type of paint. So, when you file, you need to make sure you have the right class and have looked at whether you need more than one class.

You describe your product or service - mostly from canned choices from the USPTO and then pay your fee. After it's reviewed (3 months to 1 1/2 years) you'll have your Trademark - assuming all goes well. You must be using the name to file or you can file an 'intent to use' and then use the name within a year. That's a helpful option if you wanted to make sure you'd get your name approved before you printed up $200,000 worth of advertising material and then find out the USPTO rejected your name or it was contested.

There are issues related to foreign registration that I've not covered in this article. And I need to say that it's in your best interest to seek professional help in preparing and analyzing your company issues. There is a wealth of information at the USPTO site - http://www.USPTO.gov be a patent on how the cart is Also, patents - which may often be confused with trademarks - are filed to protect a design or process. For example, on the hot dog carts there may 'also' be a patent on how the cart is actually built - its size - components - special features.

Copyrights are often confused with these two also. A copyright is usually associated with someone's writing - such as this article or any article on The Blogs of Economics 411. Copyrights are awarded the moment anything is published - in book form or such as being on a website or handed out at a public meeting. Copyrights can also apply to designs.  More about patents and copyrights in future articles.

Joseph E Poff, CPA
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