As a blogger, developer, or ecommerce business owner, you need to pay attention to trademark basics for two reasons:
Here are some basic trademark principles to help you get started:
You acquire rights and can stop others in your trade (that is, other bloggers, ecommerce businesses, website developers, or app makers) from using a substantially similar trademark if you are the first to use it in commerce for a specific class of goods or services. That means that you are the first to advertise or sell those products or services under the name. Your rights extend only to the class of goods or services which you offer as well as to those goods or services that a court or the USPTO might consider that you are likely to offer. However, simply being the first user of a mark may not get you all the protection you need. Other factors that influence trademark rights are the geographical extent of your use, whether the mark is weak or strong, or whether you have abandoned your right to use the mark. We’ll talk about these more, below.
This is a cornerstone of trademark law. You can only stop others from using a similar mark on goods or services with which the mark is used, intended to be used or likely to be used. So if you create the mark, Goodbye Rats, for a game involving rodents, you won’t be able to stop a company that adopts the name for pest extermination. That’s because consumers are not likely to be confused by the two distinct and noncompeting uses.
Trademark rights do not arise because you create a trademark—for example, you design a logo or coin a slogan. To acquire rights, you must use the trademark in commerce. You can reserve trademark rights—see below—but these rights will not vest unless you eventually use the mark in commerce.
Trademark protection is based around a “strength” classification system. Strong trademarks are distinctive, and you can immediately stop others from using similar ones. A weak trademark is not distinctive because it describes some aspect of the goods (your app) and you cannot register it on the Principal Register—the best form of U.S. trademark protection—until you strengthen it by pumping up the mark with consumer awareness through advertising and sales (known as “secondary meaning”). To determine if a mark is “distinguishable” or “distinctive” start by asking whether a consumer associates the mark with a certain product or service, a certain quality, or a specific source? The more likely that there’s a consumer association, the more likely than the mark is distinctive and strong. Unfortunately in the world of blogs, website developers and app makers, descriptive names – for example Word and Pages -- often work well. In other cases—for example, Scrivener’—distinctive clever marks are more suitable. There are no foolproof tests for choosing or for determining if a mark is strong or weak—however, be prepared for issues during registration if your mark is weak or descriptive. Generally, a mark is strong if it is either:
Learn more about Enforcing Your Trademark Rights.
In some situations, the intended trademark cannot be registered, and the owner has no right to stop others using a similar mark. The most common include:
Typically, the symbols