Before registering a trademark, it's important to complete a trademark search. This will eliminate the risk that your trademark or brand is not already registered. When searching, it is important to consider marks that are similar to your mark as well as marks that are the same. Similar marks can have an impact on your trademark registration.
UK Trademark Search
The UK Intellectual Property Office hold online records of every trademark that they have registered. The search facility within this database which enables you to search under the following criteria:-
1. A word search
2. An image search
3. Word and Image
4. Word or Image
5. Reserved Marks
The word search can be broken down into further categories. You can search under:-
-contains word This will search all marks that contain the text that you enter (one word only)
-contains string This will search all marks that contain the text that you enter (more than one word)
-exact match This will search the exact text that you enter
-starts with This will search all marks that begin with the text that you enter
The image search is a little more complicated and contains thirty categories, then a further two option boxes of sub categories. You must first decide which category your image falls under, then categorise it further. It is also useful to use the classification part of the text if you are image searching, as this will help filter out any classes which may not be relevant to your registration.
From this search, you should be able to get a rough idea of whether your trade mark is already registered or whether or not you need to seek legal advice or support in searching or registering your mark. The UK IPO state that "this not been designed as a comprehensive trade mark search facility and should not be used to determine conclusively whether a conflicting trade mark already exists."
EU (Community) Trademark Search
The EU Trademark search facility can be completed on the OHIM registry database online. CTM-ONLINE provides ready access to information on Community trade mark (CTM) applications and registrations including online access to CTM files.
You can find the UK Trademark Database here: http://www.ipo.gov.uk/tm/t-find/t-find-text.
You can find the OHIM Trademark Database here: http://oami.europa.eu/ows/rw/pages/QPLUS/databases/searchCTM.en.do.
For more information on this article, or to get a FREE no obligation UK/EU Trademark Search by a qualified Intellectual Property Lawyer or Free Legal Advice on Trademarks, contact http://www.trademarkdesignprotection.com/.
Sunday, July 25, 2010
A Practical Legal Guide to iPhone Application Development by Robert P. McHale
It's the iPhone Application developer's worst (and increasingly justified) fear: Spending significant time, money, and resources building an app only to have it rejected, or worse, pulled from the App Store for alleged legal violations.
Carefully navigating the legal landscape in which app development operates is therefore essential to launch and maintain a successful Application. Prudence dictates being mindful of the common legal pitfalls to iPhone application development before and during the development process - and not after - when it is oftentimes too late.
By examining the iPhone SDK Agreement, Apple's End User License Agreement, and federal copyright and trademark registration, this article provides an introductory overview of the common legal issues surrounding iPhone Application development, and the measures developers can adopt to minimize liability and maximize protection of their intellectual property rights.
The iPhone SDK Agreement
Apple's iPhone SDK Agreement imposes several significant legal requirements, the most notable of which include:
Privacy laws: Developers are required to comply with all state, federal, and international privacy laws regarding user data collection, and picture or voice capture. Accordingly, personal information collected from a user may not be disseminated without the user's consent; the unauthorized use of a user's name or likeness for gain is prohibited; and a user's voice may not be recorded absent a conspicuously displayed notice indicating that a recording is taking place.
Copyrights in music and content: Any music incorporated into your Application must be wholly owned by you or licensed to you on a fully "paid-up" basis. (Such a license should provide that the one-time, lump-sum payment is final, and that you are released from any and all further payment obligations to the Licensor, no matter how successful the Application becomes.) Further, any and all content in your Application must be owned by you, or be used by you with the owner's permission. If you are using content other than music by virtue of a license, the license should state the royalty terms, if any, resulting from any and all sales of your Application.
Objectionable content and materials: Applications may not contain any obscene, pornographic, offensive, or defamatory content, or other content that Apple deems objectionable. What is "objectionable" is a matter of Apple's reasonable discretion; legal challenges to a rejection of your Application on this basis will prove difficult.
Free and open source software: Applications that include Free and Open Source Software (FOSS) must comply with all applicable FOSS licensing terms. The SDK Agreement also requires (perhaps superfluously) that your use of FOSS may not in any way infect the SDK itself.
NOTE
Due to its "viral" nature, you need to be careful when using open source code that is subject to a restrictive open source license if you want to safely incorporate it into your proprietary software. For instance, the terms of the GNU General Public License (GPL) require that any derivative work that incorporates GPL code must itself be subject to the GPL, thereby rendering the resulting software "open" and the source code publicly available. Not only will any trade secrets contained in any code carrying a GPL license be forcibly disclosed, others may freely copy and distribute your source code, give it away for free, or even create a competing product using your own code. The viral nature of restrictive open source licenses can have a devastating impact on your company's intellectual property assets.
End User License Agreement
Applications made available through the App Store are subject to Apple's Licensed Application End User License Agreement ("EULA"), unless the end user enters into a valid EULA with the developer.
The following provisions of Apple's EULA are of special note, and should be adopted should you use your own EULA:
Disclaimer of warranty: This provision states that the Application is being provided "as-is," without any express or implied warranties regarding the Application's quality, performance, effectiveness or reliability. In those jurisdictions where disclaimers of warranty are enforceable, such a provision protects the Licensor from potential legal claims arising from the use of the Application, as the Licensor makes no promises of any kind.
Limitation of liability: This provision protects the Licensor from liability for personal injury, loss of profits, loss of data, or other direct and indirect damages arising from the use of, or the inability to use, the Application. This provision additionally places an upper dollar limit on the total damages for which the Licensor may be liable, excluding damages for personal injury in those states where such a limitation would be unenforceable.
Copyright and Trademark Protections
Both copyright and trademark registration are relatively affordable means to protect your investment in your software.
Copyright Registration
As a matter of law, copyright protection subsists in original works of authorship fixed in any tangible means of expression. The exclusive rights of reproduction, adaptation, and distribution are conferred automatically upon the owner of a copyright as soon as his or her work is written.
Although registering an Application is not a prerequisite for copyright protection, registration does afford several distinct advantages:
Registration is required to bring an infringement suit.
Registration within five years of publication creates a presumption of validity of the copyright and the facts contained in the registration certificate. Presumptive validity can be of critical importance when seeking a preliminary injunction or temporary restraining order requiring the copyright infringer to cease and desist.
Registration prior to infringement allows for the recovery of attorney fees and statutory damages. (Because actual damages are often difficult to prove, the owner of a copyright may elect to recover instead an award of statutory damages in an amount between $750 and $30,000, as the court deems just. The court may increase this amount to $150,000 for willful infringements.)
Where a computer program containing trade secret materials is being registered, the Copyright Office allows you to deposit source code with the trade secret information redacted, or to deposit a combination of source code and object code, with up to 49 percent of the source code blacked out. Where an applicant is unwilling to deposit source code (even with portions blacked out), he or she may deposit object code only, but must state in writing that the work as deposited in object code contains copyrightable authorship.
Because of the difficulty in reading object code, depositing your program in this form will generally protect any trade secrets contained in your code. However, because the Copyright Office cannot read the object code to determine if your program constitutes an original work of authorship, your program will be registered under the Copyright Office's "rule of doubt," and you will accordingly lose one of the primary benefits of registration - that is, the presumption that your copyright is valid.
PRACTICE POINT
Who owns the copyright for Applications created by an employee or independent contractor? Under the "work-for-hire" doctrine, there is a rebuttable presumption that the copyright in a work created by an employee acting within the scope of his or her employment vests in the employer, absent an agreement to the contrary. However, an independent contractor generally maintains the rights to his or her creation, unless the parties agree in writing that the work is considered one for hire. Best practice: Get it in writing!
Trademark Registration
A trademark is any word, name, symbol, or device, or any combination thereof, that identifies to consumers the source of a product, and allows trademark owner to distinguish their products from the products manufactured or sold by others.
Federal registration of your trademark confers several important advantages:
Exclusive use of the mark for particular goods and services on a nationwide basis. (Note: Without federal registration, an owner's right to use a trademark is limited to the actual geographic area of actual use of the mark.)
Access to the federal courts to enforce your rights, including double or triple damages in the event of willful infringement (which is presumed if the infringed mark was on the federal principal trademark register).
Constructive notice of trademark protection, and prima facie evidence of the registrant's ownership and exclusive right to use the mark.
Right to achieve "incontestable status" after a period of five years of continuous use, thereby reducing the ability of infringers to challenge the validity of the mark on the basis that it is not sufficiently distinctive.
In selecting a name to be trademarked, it is important to adopt a strong (or distinctive) mark, as the level of protection against infringement of a trademark varies according to the "strength" of a mark. Generally, "arbitrary" and "fanciful" marks enjoy the greatest protection, whereas "generic" marks are not registrable, and can therefore never achieve federal protection. Apple, in referring to computers, is an example of a strong (here, "arbitrary") mark because the word "apple" bears no relationship to the product or service the mark represents. On the other hand, the term computer in the software industry is irretrievably generic and would never be afforded trademark protection.
Together with copyright registration, trademark registration should be considered as an additional step to protect your intellectual property rights in any Application you develop.
PRACTICE POINT
Even if you chose not to trademark your Application, a thorough trademark search should be still conducted to avoid inadvertent infringement. A number of Applications have been removed from the App Store on the basis that they allegedly infringed a pre-existing trademark.
Conclusion
While it is impossible to predict every potential legal issue that an iPhone Application developer may confront, the most common pitfalls can certainly be avoided.
A proactive legal compliance strategy, implemented early on as part of the development and pre-development process, should be adopted to reduce legal risk and strengthen protection of your intellectual property rights in your Application.
NOTE
The information contained herein is not intended to constitute legal advice or a legal opinion as to any particular matter. The contents are intended for general information purposes only, and you are urged to consult with an attorney concerning your own situation and any specific questions you may have.
Robert McHale, Esq. is the founding Partner of R | McHale LLC, a full-service law firm whose corporate practice represents clients on a wide variety of intellectual property law matters, including copyright, trademark, licensing, and other proprietary protections.
http://www.rmchale.com/
http://EzineArticles.com/?expert=Robert_P._McHale
Carefully navigating the legal landscape in which app development operates is therefore essential to launch and maintain a successful Application. Prudence dictates being mindful of the common legal pitfalls to iPhone application development before and during the development process - and not after - when it is oftentimes too late.
By examining the iPhone SDK Agreement, Apple's End User License Agreement, and federal copyright and trademark registration, this article provides an introductory overview of the common legal issues surrounding iPhone Application development, and the measures developers can adopt to minimize liability and maximize protection of their intellectual property rights.
The iPhone SDK Agreement
Apple's iPhone SDK Agreement imposes several significant legal requirements, the most notable of which include:
Privacy laws: Developers are required to comply with all state, federal, and international privacy laws regarding user data collection, and picture or voice capture. Accordingly, personal information collected from a user may not be disseminated without the user's consent; the unauthorized use of a user's name or likeness for gain is prohibited; and a user's voice may not be recorded absent a conspicuously displayed notice indicating that a recording is taking place.
Copyrights in music and content: Any music incorporated into your Application must be wholly owned by you or licensed to you on a fully "paid-up" basis. (Such a license should provide that the one-time, lump-sum payment is final, and that you are released from any and all further payment obligations to the Licensor, no matter how successful the Application becomes.) Further, any and all content in your Application must be owned by you, or be used by you with the owner's permission. If you are using content other than music by virtue of a license, the license should state the royalty terms, if any, resulting from any and all sales of your Application.
Objectionable content and materials: Applications may not contain any obscene, pornographic, offensive, or defamatory content, or other content that Apple deems objectionable. What is "objectionable" is a matter of Apple's reasonable discretion; legal challenges to a rejection of your Application on this basis will prove difficult.
Free and open source software: Applications that include Free and Open Source Software (FOSS) must comply with all applicable FOSS licensing terms. The SDK Agreement also requires (perhaps superfluously) that your use of FOSS may not in any way infect the SDK itself.
NOTE
Due to its "viral" nature, you need to be careful when using open source code that is subject to a restrictive open source license if you want to safely incorporate it into your proprietary software. For instance, the terms of the GNU General Public License (GPL) require that any derivative work that incorporates GPL code must itself be subject to the GPL, thereby rendering the resulting software "open" and the source code publicly available. Not only will any trade secrets contained in any code carrying a GPL license be forcibly disclosed, others may freely copy and distribute your source code, give it away for free, or even create a competing product using your own code. The viral nature of restrictive open source licenses can have a devastating impact on your company's intellectual property assets.
End User License Agreement
Applications made available through the App Store are subject to Apple's Licensed Application End User License Agreement ("EULA"), unless the end user enters into a valid EULA with the developer.
The following provisions of Apple's EULA are of special note, and should be adopted should you use your own EULA:
Disclaimer of warranty: This provision states that the Application is being provided "as-is," without any express or implied warranties regarding the Application's quality, performance, effectiveness or reliability. In those jurisdictions where disclaimers of warranty are enforceable, such a provision protects the Licensor from potential legal claims arising from the use of the Application, as the Licensor makes no promises of any kind.
Limitation of liability: This provision protects the Licensor from liability for personal injury, loss of profits, loss of data, or other direct and indirect damages arising from the use of, or the inability to use, the Application. This provision additionally places an upper dollar limit on the total damages for which the Licensor may be liable, excluding damages for personal injury in those states where such a limitation would be unenforceable.
Copyright and Trademark Protections
Both copyright and trademark registration are relatively affordable means to protect your investment in your software.
Copyright Registration
As a matter of law, copyright protection subsists in original works of authorship fixed in any tangible means of expression. The exclusive rights of reproduction, adaptation, and distribution are conferred automatically upon the owner of a copyright as soon as his or her work is written.
Although registering an Application is not a prerequisite for copyright protection, registration does afford several distinct advantages:
Registration is required to bring an infringement suit.
Registration within five years of publication creates a presumption of validity of the copyright and the facts contained in the registration certificate. Presumptive validity can be of critical importance when seeking a preliminary injunction or temporary restraining order requiring the copyright infringer to cease and desist.
Registration prior to infringement allows for the recovery of attorney fees and statutory damages. (Because actual damages are often difficult to prove, the owner of a copyright may elect to recover instead an award of statutory damages in an amount between $750 and $30,000, as the court deems just. The court may increase this amount to $150,000 for willful infringements.)
Where a computer program containing trade secret materials is being registered, the Copyright Office allows you to deposit source code with the trade secret information redacted, or to deposit a combination of source code and object code, with up to 49 percent of the source code blacked out. Where an applicant is unwilling to deposit source code (even with portions blacked out), he or she may deposit object code only, but must state in writing that the work as deposited in object code contains copyrightable authorship.
Because of the difficulty in reading object code, depositing your program in this form will generally protect any trade secrets contained in your code. However, because the Copyright Office cannot read the object code to determine if your program constitutes an original work of authorship, your program will be registered under the Copyright Office's "rule of doubt," and you will accordingly lose one of the primary benefits of registration - that is, the presumption that your copyright is valid.
PRACTICE POINT
Who owns the copyright for Applications created by an employee or independent contractor? Under the "work-for-hire" doctrine, there is a rebuttable presumption that the copyright in a work created by an employee acting within the scope of his or her employment vests in the employer, absent an agreement to the contrary. However, an independent contractor generally maintains the rights to his or her creation, unless the parties agree in writing that the work is considered one for hire. Best practice: Get it in writing!
Trademark Registration
A trademark is any word, name, symbol, or device, or any combination thereof, that identifies to consumers the source of a product, and allows trademark owner to distinguish their products from the products manufactured or sold by others.
Federal registration of your trademark confers several important advantages:
Exclusive use of the mark for particular goods and services on a nationwide basis. (Note: Without federal registration, an owner's right to use a trademark is limited to the actual geographic area of actual use of the mark.)
Access to the federal courts to enforce your rights, including double or triple damages in the event of willful infringement (which is presumed if the infringed mark was on the federal principal trademark register).
Constructive notice of trademark protection, and prima facie evidence of the registrant's ownership and exclusive right to use the mark.
Right to achieve "incontestable status" after a period of five years of continuous use, thereby reducing the ability of infringers to challenge the validity of the mark on the basis that it is not sufficiently distinctive.
In selecting a name to be trademarked, it is important to adopt a strong (or distinctive) mark, as the level of protection against infringement of a trademark varies according to the "strength" of a mark. Generally, "arbitrary" and "fanciful" marks enjoy the greatest protection, whereas "generic" marks are not registrable, and can therefore never achieve federal protection. Apple, in referring to computers, is an example of a strong (here, "arbitrary") mark because the word "apple" bears no relationship to the product or service the mark represents. On the other hand, the term computer in the software industry is irretrievably generic and would never be afforded trademark protection.
Together with copyright registration, trademark registration should be considered as an additional step to protect your intellectual property rights in any Application you develop.
PRACTICE POINT
Even if you chose not to trademark your Application, a thorough trademark search should be still conducted to avoid inadvertent infringement. A number of Applications have been removed from the App Store on the basis that they allegedly infringed a pre-existing trademark.
Conclusion
While it is impossible to predict every potential legal issue that an iPhone Application developer may confront, the most common pitfalls can certainly be avoided.
A proactive legal compliance strategy, implemented early on as part of the development and pre-development process, should be adopted to reduce legal risk and strengthen protection of your intellectual property rights in your Application.
NOTE
The information contained herein is not intended to constitute legal advice or a legal opinion as to any particular matter. The contents are intended for general information purposes only, and you are urged to consult with an attorney concerning your own situation and any specific questions you may have.
Robert McHale, Esq. is the founding Partner of R | McHale LLC, a full-service law firm whose corporate practice represents clients on a wide variety of intellectual property law matters, including copyright, trademark, licensing, and other proprietary protections.
http://www.rmchale.com/
http://EzineArticles.com/?expert=Robert_P._McHale
Sunday, July 11, 2010
What is the Difference - Trademark Or Copyright? How to Protect Yourself by Zach Schapel
The vast majority of the content on the internet has some sort of copyright, but typically it is very hard to police if someone has taken all or a portion of your work. There are ways to officially apply for a copyright using some of the online legal document services available on this site and others. However, most people are content to put a copyright notice at the bottom of their creation and just hope that it does not get stolen or reproduced without their permission. For more extensive works such as books or large publications it would be prudent to apply for an official copyright using an online legal document service.
A trademark is available for businesses and others who want to afford some sort of extra protection to their ideas and brand name. Obviously, if some other company sprouted up and started sporting the tag-line "Just Do It(TM)", Nike would not be happy. They have invested millions and millions of dollars into creating the brand image that is associated with the tagline. Although most businesses and individuals do not need the protection that Nike can afford, there are inexpensive alternatives.
Trademarks can be acquired online through an application process that typically will total you less than $500. For more advanced users who want to have active protection on their ideas or brand, there are also services that will monitor your trademark. The trademark monitoring service basically is a periodic scan of the trademark database for possible conflicts. If someone files a trademark that could be a possible infringement on your own trademark, you would be notified. This is the point at which the client would need to move on to an actual lawyer, because the legal document service can only do so much. If the trademark infringement is determined to be valid, further legal action would be required.
Trademarks and copyrights are very important to businesses and publishers, especially when your original work or content constitutes your livelihood. Spend careful time considering how much money it is worth to protect yourself from possible thieves or plagiarism. If the business DIRECTLY relates to the original content or brand image, it would be advisable to officially apply for protection of your ideas.
Zach
http://www.docsondemand.com
A trademark is available for businesses and others who want to afford some sort of extra protection to their ideas and brand name. Obviously, if some other company sprouted up and started sporting the tag-line "Just Do It(TM)", Nike would not be happy. They have invested millions and millions of dollars into creating the brand image that is associated with the tagline. Although most businesses and individuals do not need the protection that Nike can afford, there are inexpensive alternatives.
Trademarks can be acquired online through an application process that typically will total you less than $500. For more advanced users who want to have active protection on their ideas or brand, there are also services that will monitor your trademark. The trademark monitoring service basically is a periodic scan of the trademark database for possible conflicts. If someone files a trademark that could be a possible infringement on your own trademark, you would be notified. This is the point at which the client would need to move on to an actual lawyer, because the legal document service can only do so much. If the trademark infringement is determined to be valid, further legal action would be required.
Trademarks and copyrights are very important to businesses and publishers, especially when your original work or content constitutes your livelihood. Spend careful time considering how much money it is worth to protect yourself from possible thieves or plagiarism. If the business DIRECTLY relates to the original content or brand image, it would be advisable to officially apply for protection of your ideas.
Zach
http://www.docsondemand.com
Tips to Register Trademarks For Companies by Lenny Parker
Typical association will always consider copyright and trademark law since it play an important role in all activities of every association. The trademark is important to do when it made to protecting your own intellectual property or avoiding the infringing of others.
There are many well informed sources to explain the details about trademark process without the involvement of lawyers. Some advanced advice and guidance of counsel is required in formulating and implementing your association's intellectual property policies.
You should know basic framework for effective policies and practices in the copyright and trademark area. Firstly, you should use copyright notices on and in connection with all creative works published by your association and trademark notices on all trademarks, service marks, and certification marks owned and used by your association.
This action can significantly enhance your intellectual property rights, including eliminating an "innocent infringement" defense
Next, you need to strengthen your trademark by register it. Your association's name, logos, slogans, certification marks, and all other important marks with the U.S. Patent & Trademark Office are important items to register.
This means a lot to enhance and enforce them while federal registration of your marks is not required to obtain and maintain trademark rights. It is also essential to obtain domain name registrations for all available names you plan to use in the future and catch registrations from others if your association has superior rights to the domain name.
After you completed register your trademarks symbol, you also need to register your copyrights. This topic can be expanded if you have a large company with many products. Items that need to be registered including association's Web site, publications and all other important, original, creative works that are fixed in any print, electronic, audio-visual, or other tangible medium with the U.S. Copyright Office.
Trademark and copyright registration for companies is a very simple and inexpensive process. It is a provision to filing suit to enforce your rights and confers other valuable benefits while such registration is not required to obtain and maintain a copyright in a work.
Get another helpful advice and tips about trademark in registering a trademark.
There are many well informed sources to explain the details about trademark process without the involvement of lawyers. Some advanced advice and guidance of counsel is required in formulating and implementing your association's intellectual property policies.
You should know basic framework for effective policies and practices in the copyright and trademark area. Firstly, you should use copyright notices on and in connection with all creative works published by your association and trademark notices on all trademarks, service marks, and certification marks owned and used by your association.
This action can significantly enhance your intellectual property rights, including eliminating an "innocent infringement" defense
Next, you need to strengthen your trademark by register it. Your association's name, logos, slogans, certification marks, and all other important marks with the U.S. Patent & Trademark Office are important items to register.
This means a lot to enhance and enforce them while federal registration of your marks is not required to obtain and maintain trademark rights. It is also essential to obtain domain name registrations for all available names you plan to use in the future and catch registrations from others if your association has superior rights to the domain name.
After you completed register your trademarks symbol, you also need to register your copyrights. This topic can be expanded if you have a large company with many products. Items that need to be registered including association's Web site, publications and all other important, original, creative works that are fixed in any print, electronic, audio-visual, or other tangible medium with the U.S. Copyright Office.
Trademark and copyright registration for companies is a very simple and inexpensive process. It is a provision to filing suit to enforce your rights and confers other valuable benefits while such registration is not required to obtain and maintain a copyright in a work.
Get another helpful advice and tips about trademark in registering a trademark.
Trademark Search! Is It Even Important? by Namratha Jain
Today "Brandism" (coined to state the importance of brand name) has increased so much that, it has led to imitation and counterfeiting of goods using same brand names or similar ones to deceive or confuse the customers. Therefore protection of one's propriety in the brand name has become a necessity than a status. A Trademark search needs to be conducted before filing for protection. Trademark search is very important before registering a Trademark as it confirms the presence of any other similar trademark already in existence. This acts as a deterrent for using already existing mark.
Trademark search can be done in two ways:
* One by asking a authorized trademark agent to do the searches and give their opinion and report for the same whether the present trademark name or logo can be used or not,
* Second way is by filling in Form no 54 available from the Trademark Registry office for doing the necessary searches.
In Form no 54, a request for searches is filed before the Registrar to ascertain whether a similar mark exists or not by sending triplicate copies of the trademark to be used. The application has to also specify the class in which the goods or services come under. A direction to the Registrar is to be obtained if the relevant class for goods or services is not known. If a mark comes under multiple classes then for each class a separate Form has to be filled. This can be done paying a prescribed fee of Rs. 500 for every trademark name to be searched.
The form can be submitted at any of the Trademark registry office in India, but it is advisable to submit the form in ones respective zone itself. For e.g. if the applicant is residing in Bangalore and wants to get searches done then Chennai Trademark registry would be appropriate place for submitting than Delhi, Kolkatta, Mumbai or Ahmedabad.
ONLINE TRADEMARK SEARCH
With the recent transformation in Indian IPR system (Thanks to Mr. P.S.Kurian) today a trademark search can be conducted online by paying a fee of Rs 400 through Axis Bank or SBI only, towards the Trademarks Registry office. Once paid a user id and password is given and one can log onto the Trademark website http://www.patentoffice.nic.in/ and start the necessary searches. A similar or phonetically similar word or device can be searched in the website. The class under which the word comes has to be mentioned before starting the searches. Hence, it is advisable to know before hand under which class the goods or services fall under as the search time is only for limited period, thereafter one is automatically logged out.
With these searches one can definitely be sure that they are not and will not infringe any other registered Trademark.
Namratha Jain
IP Attorney, of Intepat IP Services. (http://www.intepat.com), A leading IP consulting firm in India.
Trademark search can be done in two ways:
* One by asking a authorized trademark agent to do the searches and give their opinion and report for the same whether the present trademark name or logo can be used or not,
* Second way is by filling in Form no 54 available from the Trademark Registry office for doing the necessary searches.
In Form no 54, a request for searches is filed before the Registrar to ascertain whether a similar mark exists or not by sending triplicate copies of the trademark to be used. The application has to also specify the class in which the goods or services come under. A direction to the Registrar is to be obtained if the relevant class for goods or services is not known. If a mark comes under multiple classes then for each class a separate Form has to be filled. This can be done paying a prescribed fee of Rs. 500 for every trademark name to be searched.
The form can be submitted at any of the Trademark registry office in India, but it is advisable to submit the form in ones respective zone itself. For e.g. if the applicant is residing in Bangalore and wants to get searches done then Chennai Trademark registry would be appropriate place for submitting than Delhi, Kolkatta, Mumbai or Ahmedabad.
ONLINE TRADEMARK SEARCH
With the recent transformation in Indian IPR system (Thanks to Mr. P.S.Kurian) today a trademark search can be conducted online by paying a fee of Rs 400 through Axis Bank or SBI only, towards the Trademarks Registry office. Once paid a user id and password is given and one can log onto the Trademark website http://www.patentoffice.nic.in/ and start the necessary searches. A similar or phonetically similar word or device can be searched in the website. The class under which the word comes has to be mentioned before starting the searches. Hence, it is advisable to know before hand under which class the goods or services fall under as the search time is only for limited period, thereafter one is automatically logged out.
With these searches one can definitely be sure that they are not and will not infringe any other registered Trademark.
Namratha Jain
IP Attorney, of Intepat IP Services. (http://www.intepat.com), A leading IP consulting firm in India.
Sunday, July 4, 2010
Trademark - Do I Need One For My Business Name and Logo? by Wendy Maynard
Wondering if a trademark is important to you as a business owner? Let's start with the basics. A trademark is a word, phrase, symbol, or logo that distinguishes and identifies the source of goods of one company or person from another. For example, the name Kraft is trademarked, as is Nike's "swoosh" logo.
The list of what constitutes a trademark is long. A trademark can also be granted to unique packaging such as the shape of Coca-cola's bottle, building designs, color, sound, and even fragrance. Service marks receive the same legal protection, but are used to distinguish services instead of products.
Your business can acquire trade or service marks through the consistent use of a mark. The symbols TM and SM demonstrate the owner treats the mark as a trademark or service mark. There is no requirement to federally register at the trademark office. You are still protected under intellectual property laws. However, if another party uses your mark it can be more difficult to prove your ownership.
To register online with the United States Patent and Trademark Office (USPTO), go to www.uspto.gov There is a registration fee for each name, logo, and slogan. Federal registration ensures another party is not already using your mark. A registered trademark gives you exclusive rights to use a mark with your particular goods or services. The USPTO can only register trademarks for marks that are used across state lines. A website customers can access in other areas can satisfy this requirement. Otherwise, you will only be able to apply for a state trademark.
Only a mark registered and approved by the USPTO can use the ® symbol. Since the application process can take many months to complete, use the TM or SM symbol in the meantime to establish your intention to use the mark as a trademark. Make sure you keep records as to when your mark was first used in commerce and regulate the use of your mark in the marketplace.
Wendy Maynard is a founding partner at Kinesis, Inc. - a marketing and design firm based in Portland Oregon. We specialize in logos, web site design, branding, graphic design, SEO, marketing, and social media. Our clients benefit from out experience at creating marketing materials that help them increase their business revenues. View our portfolio at http://www.kinesisinc.com/
The list of what constitutes a trademark is long. A trademark can also be granted to unique packaging such as the shape of Coca-cola's bottle, building designs, color, sound, and even fragrance. Service marks receive the same legal protection, but are used to distinguish services instead of products.
Your business can acquire trade or service marks through the consistent use of a mark. The symbols TM and SM demonstrate the owner treats the mark as a trademark or service mark. There is no requirement to federally register at the trademark office. You are still protected under intellectual property laws. However, if another party uses your mark it can be more difficult to prove your ownership.
To register online with the United States Patent and Trademark Office (USPTO), go to www.uspto.gov There is a registration fee for each name, logo, and slogan. Federal registration ensures another party is not already using your mark. A registered trademark gives you exclusive rights to use a mark with your particular goods or services. The USPTO can only register trademarks for marks that are used across state lines. A website customers can access in other areas can satisfy this requirement. Otherwise, you will only be able to apply for a state trademark.
Only a mark registered and approved by the USPTO can use the ® symbol. Since the application process can take many months to complete, use the TM or SM symbol in the meantime to establish your intention to use the mark as a trademark. Make sure you keep records as to when your mark was first used in commerce and regulate the use of your mark in the marketplace.
Wendy Maynard is a founding partner at Kinesis, Inc. - a marketing and design firm based in Portland Oregon. We specialize in logos, web site design, branding, graphic design, SEO, marketing, and social media. Our clients benefit from out experience at creating marketing materials that help them increase their business revenues. View our portfolio at http://www.kinesisinc.com/
Trademark Infringement Issues For Pay-Per-Click (PPC) Advertisers by
Yahoo has just announced they will no longer allow PPC advertisers to advertise or bid on trademarked terms.
Could this be a trend of things to come from the other major search players?
MSN's new adCenter (still in beta) states you are not allowed to infringe trademarks within their editorial guidelines (see policy below).
However, Google still maintains a strong stance in allowing advertisers to bid on trademarked search terms as long as the trademarked term is not used within the advertiser's ad-copy.
Numbers to Consider
Next to click fraud, trademark violations are the second largest concern to Pay-Per-Click (PPC) advertising. Out of the total number of searches online, 20% are trademark searches. Meaning, company owned trademarks such as "Pontiac", account for 20% of all search traffic. While 1 in 5 searches for trademark terms may seem high, most conversions do not originate from trademarked terms. A study by comScore and Yahoo Search Marketing (Overture) found most buyers do not search by manufacturer or product name. Rather, buyers use broad search terms that do not include a manufacturer's name. Broad search terms account for 70% of total searches and 60% of total conversions.
Search Engine's Policy on PPC Trademark Bidding
Yahoo on Trademarks:
"On March 1, 2006, Yahoo! Search Marketing will modify its editorial
guidelines regarding the use of keywords containing trademarks.
Previously, we allowed competitive advertising by allowing advertisers
to bid on third-party trademarks if those advertisers offered detailed
comparative information about the trademark owners' products or
services in comparison to the competitive products and services
that were offered or promoted on the advertisers' site.
In order to more easily deliver quality user experiences when
users search on terms that are trademarks, Yahoo! Search Marketing
has determined that we will no longer allow bidding on keywords
containing competitor trademarks."
MSN AdCenter on Trademarks
"Microsoft requires all advertisers to agree that they will not bid on keywords, or use in the text of their advertisements, any word whose use would infringe the trademark of any third party or would otherwise be unlawful or in violation of the rights of any third party".
Google Adwords on Trademarks:
"Google takes allegations of trademark infringement very seriously and, as a courtesy, we're happy to investigate matters raised by trademark owners. Also, our Terms and Conditions with advertisers prohibit intellectual property infringement by advertisers and make it clear that advertisers are responsible for the keywords they choose to generate advertisements and the text that they choose to use in those advertisements."
Solution or More Problems
With all Engines moving toward a TM standard, it would have many benefits to both advertisers and searchers. This standard would be good for marketers who would have to be more creative in their copy creation creating increased demand for qualified marketers which would translate into higher fees. Search Engines hosting the ads would maintain revenue levels, but online public relations firms may lose as they would not be required to police search engines for their clients with trademarks. Lastly, the mark owner would continue to be protected and user experience would not be affected.
Case Study:
I'm currently working with an AdWords client in a circumstance where their competitors are bidding on their trademarked search terms. Aside from the constant policing and reporting for trademark violations used in the ads themselves, adspend to secure top positions for their ads has skyrocketed from an initial $2.00 per click to $15.00 per click. Additionally, monthly spend has increased from $1,200 to nearly $30,000.
I have to go back to my client with an estimated budget of $500,000 for the rest of this year to control the space for their own branded trademarked term. I am reluctant to do that as it doesn't make sense with the announcement from Yahoo on their new trademark policy. Given the level of aggression by the competitors and the extortionate cost now been borne by my client there is only one solution and that is to stop all advertisers from bidding on the terms. In my opinion, it is simply not right that a business owner has to spend $500,000+ to buy their own branded term that has already cost them millions of dollars to build. This is $500,000+ in revenue for Google which is being generated by a policy that is beyond elementary business terms. Yahoo and MSN have recognized the injustice of this policy and have taken steps to change it.
If we cannot treat this policy on a case by case basis, then I have no alternative than to advise my client that we cannot help them any further and their only option is to resort to legal action against Google.
Google also advises that you take the matter up with individual advertisers which in many cases are impossible with private registrations and foreign companies. You could add to your high costs dramatically to have to send cease desists to all infringers. Many will ignore you.
The classic bait and switch does not seem to apply to the Internet. Many companies are okay with their terms being bought for comparison shopping and by re-sellers. The solution here is for those companies to give permission to Google to allow their re-sellers to purchase the name. With the strength and sophistication of Google's technology how difficult can this be? I doubt it is any more cumbersome than filtering search results for China.
Your Defense Against Trademark Violations
Website companies where the majority of their revenue is generated through online sales depend heavily on search engines to generate traffic to their website. In order to defend against trademark infringements you will need to conduct search audits at least once every month. You not only need to look over organic search results, but also paid search results or PPC contextual ads. You should look through the top 30 results of the search listings.
For organic search engine results you should look at both the questionable result and the site displayed in the result. When looking over the possible violator's site, don't just look over the visible content on the site; look over the code as well to uncover hidden text, image alt tags and keyword meta tags that may include your trademarked names.
Then document your findings. For search engine results and PPC results use a "screen capture" of the page displaying the mark infringement. For mark infringements that are visible on a website, save the entire page's code as a .txt file.
What about if you are you seeing an infringement in organic search results, but when you click on the page, there is no infringement? They may be using a cloaked page which includes your trademark. To check this out you will need to view the search engine's cached page on file. Make sure to save a copy of this code as well.
You will need to document your findings properly by dating the violation as well as the site owner's complete contact information. Use http://www.dnsstuff.com to get the whois information for the site. Once you have all of this documented you will need to send your findings to the appropriate search engine.
You may also want to take the legal route, in which case you should keep a record of all your documentation to present to your legal counsel.
The best way to gather evidence is to hire a third party to collect evidence against the infringer of your trademark or copyrighted material. Recently at Search Engine Strategies in New York City during February of 2006, Deborah Wilcox, Partner of Baker & Hostetler LLP who specializes in trademark and copyright areas of law said, "Use a third party to make print outs and audit the search results. If the case goes to court you will need hard evidence for the judge."
Contact the Search Engines
You can also contact the search engines directly if you believe an advertiser is infringing on your trademark. The respective search engine contact information is below.
Google
Google Inc.
Attn: Google AdWords, Trademark Complaints
2400 Bayshore Parkway
Mountain View, CA 94043
Yahoo! Search Marketing
Formerly: Overture Services, Inc.
Attn: Business & Legal Affairs - Trademarks
74 N. Pasadena Ave., 3rd Floor
Pasadena, California 91103
Fax: 626 685-5601
Microsoft Corporation
Attn: MSN Search Trademark Concerns
One Microsoft Way
Redmond, WA 98052
USA
Trademark Infringement Resources
International Trademark Association
American Patent & Trademark Law Center
Internet patent, copyright, trademark, and legal issues
Trademarks on the Internet
Bill Younger writes for Elixir Systems, a full service search engine marketing company specializing in organic search engine optimization services, online public relations management and paid search or PPC management. For more information visit http://www.elixirsystems.com/
Could this be a trend of things to come from the other major search players?
MSN's new adCenter (still in beta) states you are not allowed to infringe trademarks within their editorial guidelines (see policy below).
However, Google still maintains a strong stance in allowing advertisers to bid on trademarked search terms as long as the trademarked term is not used within the advertiser's ad-copy.
Numbers to Consider
Next to click fraud, trademark violations are the second largest concern to Pay-Per-Click (PPC) advertising. Out of the total number of searches online, 20% are trademark searches. Meaning, company owned trademarks such as "Pontiac", account for 20% of all search traffic. While 1 in 5 searches for trademark terms may seem high, most conversions do not originate from trademarked terms. A study by comScore and Yahoo Search Marketing (Overture) found most buyers do not search by manufacturer or product name. Rather, buyers use broad search terms that do not include a manufacturer's name. Broad search terms account for 70% of total searches and 60% of total conversions.
Search Engine's Policy on PPC Trademark Bidding
Yahoo on Trademarks:
"On March 1, 2006, Yahoo! Search Marketing will modify its editorial
guidelines regarding the use of keywords containing trademarks.
Previously, we allowed competitive advertising by allowing advertisers
to bid on third-party trademarks if those advertisers offered detailed
comparative information about the trademark owners' products or
services in comparison to the competitive products and services
that were offered or promoted on the advertisers' site.
In order to more easily deliver quality user experiences when
users search on terms that are trademarks, Yahoo! Search Marketing
has determined that we will no longer allow bidding on keywords
containing competitor trademarks."
MSN AdCenter on Trademarks
"Microsoft requires all advertisers to agree that they will not bid on keywords, or use in the text of their advertisements, any word whose use would infringe the trademark of any third party or would otherwise be unlawful or in violation of the rights of any third party".
Google Adwords on Trademarks:
"Google takes allegations of trademark infringement very seriously and, as a courtesy, we're happy to investigate matters raised by trademark owners. Also, our Terms and Conditions with advertisers prohibit intellectual property infringement by advertisers and make it clear that advertisers are responsible for the keywords they choose to generate advertisements and the text that they choose to use in those advertisements."
Solution or More Problems
With all Engines moving toward a TM standard, it would have many benefits to both advertisers and searchers. This standard would be good for marketers who would have to be more creative in their copy creation creating increased demand for qualified marketers which would translate into higher fees. Search Engines hosting the ads would maintain revenue levels, but online public relations firms may lose as they would not be required to police search engines for their clients with trademarks. Lastly, the mark owner would continue to be protected and user experience would not be affected.
Case Study:
I'm currently working with an AdWords client in a circumstance where their competitors are bidding on their trademarked search terms. Aside from the constant policing and reporting for trademark violations used in the ads themselves, adspend to secure top positions for their ads has skyrocketed from an initial $2.00 per click to $15.00 per click. Additionally, monthly spend has increased from $1,200 to nearly $30,000.
I have to go back to my client with an estimated budget of $500,000 for the rest of this year to control the space for their own branded trademarked term. I am reluctant to do that as it doesn't make sense with the announcement from Yahoo on their new trademark policy. Given the level of aggression by the competitors and the extortionate cost now been borne by my client there is only one solution and that is to stop all advertisers from bidding on the terms. In my opinion, it is simply not right that a business owner has to spend $500,000+ to buy their own branded term that has already cost them millions of dollars to build. This is $500,000+ in revenue for Google which is being generated by a policy that is beyond elementary business terms. Yahoo and MSN have recognized the injustice of this policy and have taken steps to change it.
If we cannot treat this policy on a case by case basis, then I have no alternative than to advise my client that we cannot help them any further and their only option is to resort to legal action against Google.
Google also advises that you take the matter up with individual advertisers which in many cases are impossible with private registrations and foreign companies. You could add to your high costs dramatically to have to send cease desists to all infringers. Many will ignore you.
The classic bait and switch does not seem to apply to the Internet. Many companies are okay with their terms being bought for comparison shopping and by re-sellers. The solution here is for those companies to give permission to Google to allow their re-sellers to purchase the name. With the strength and sophistication of Google's technology how difficult can this be? I doubt it is any more cumbersome than filtering search results for China.
Your Defense Against Trademark Violations
Website companies where the majority of their revenue is generated through online sales depend heavily on search engines to generate traffic to their website. In order to defend against trademark infringements you will need to conduct search audits at least once every month. You not only need to look over organic search results, but also paid search results or PPC contextual ads. You should look through the top 30 results of the search listings.
For organic search engine results you should look at both the questionable result and the site displayed in the result. When looking over the possible violator's site, don't just look over the visible content on the site; look over the code as well to uncover hidden text, image alt tags and keyword meta tags that may include your trademarked names.
Then document your findings. For search engine results and PPC results use a "screen capture" of the page displaying the mark infringement. For mark infringements that are visible on a website, save the entire page's code as a .txt file.
What about if you are you seeing an infringement in organic search results, but when you click on the page, there is no infringement? They may be using a cloaked page which includes your trademark. To check this out you will need to view the search engine's cached page on file. Make sure to save a copy of this code as well.
You will need to document your findings properly by dating the violation as well as the site owner's complete contact information. Use http://www.dnsstuff.com to get the whois information for the site. Once you have all of this documented you will need to send your findings to the appropriate search engine.
You may also want to take the legal route, in which case you should keep a record of all your documentation to present to your legal counsel.
The best way to gather evidence is to hire a third party to collect evidence against the infringer of your trademark or copyrighted material. Recently at Search Engine Strategies in New York City during February of 2006, Deborah Wilcox, Partner of Baker & Hostetler LLP who specializes in trademark and copyright areas of law said, "Use a third party to make print outs and audit the search results. If the case goes to court you will need hard evidence for the judge."
Contact the Search Engines
You can also contact the search engines directly if you believe an advertiser is infringing on your trademark. The respective search engine contact information is below.
Google Inc.
Attn: Google AdWords, Trademark Complaints
2400 Bayshore Parkway
Mountain View, CA 94043
Yahoo! Search Marketing
Formerly: Overture Services, Inc.
Attn: Business & Legal Affairs - Trademarks
74 N. Pasadena Ave., 3rd Floor
Pasadena, California 91103
Fax: 626 685-5601
Microsoft Corporation
Attn: MSN Search Trademark Concerns
One Microsoft Way
Redmond, WA 98052
USA
Trademark Infringement Resources
International Trademark Association
American Patent & Trademark Law Center
Internet patent, copyright, trademark, and legal issues
Trademarks on the Internet
Bill Younger writes for Elixir Systems, a full service search engine marketing company specializing in organic search engine optimization services, online public relations management and paid search or PPC management. For more information visit http://www.elixirsystems.com/
Friday, July 2, 2010
Scammers Have Destroyed the Internet
Reuters reports that online scams cost individuals and businesses more than $500 million in losses in 2009, doubling 2007's figures. Scams have permeated the Internet from search results that feature malware-loading attack sites to phishing emails to even fake dating correspondence. Online fraud has so jeopardized trust in common Internet communication channels, that it can be credibly said that scammers have destroyed the Internet.
Previously trusted communications like bank email and other "official" notices can no longer be trusted.
Greed-based scams focus on "something for nothing." Nigerian "419" emails, "free iPod/iPad" redemption notices, and similar fraud fall under this heading.
"Today's online scammer is very sophisticated. They really know how to push the intended victim's psychological buttons. Indeed, one of the fastest growing "genres" of online scams, dating scams, exploit one of the most basic human needs--the need for love. You won't believe the emotional manipulation unscrupulous dating site affiliates will stoop to", says Thompson.
Posing as women, unethical dating site marketers, based on litigation records, use email, classified ads, chatrooms, and even webcams to snare unsuspecting victims. According to Thompson, it's gotten so bad that people looking for dates online must be extra suspicious of online personal ads to make sure they are genuine and not out to upsell them to a dating site subscription. Phishing and identity theft schemes are rampant and constantly evolving. From bank "notification" emails to domain registration emails to account notification to email attachments that load attack sites, phishing attacks have taken on a huge variety of forms that it is easy to get tricked into opening these types of emails or search results.
Source: Website: http://www.ixdownload.com
Previously trusted communications like bank email and other "official" notices can no longer be trusted.
Greed-based scams focus on "something for nothing." Nigerian "419" emails, "free iPod/iPad" redemption notices, and similar fraud fall under this heading.
"Today's online scammer is very sophisticated. They really know how to push the intended victim's psychological buttons. Indeed, one of the fastest growing "genres" of online scams, dating scams, exploit one of the most basic human needs--the need for love. You won't believe the emotional manipulation unscrupulous dating site affiliates will stoop to", says Thompson.
Posing as women, unethical dating site marketers, based on litigation records, use email, classified ads, chatrooms, and even webcams to snare unsuspecting victims. According to Thompson, it's gotten so bad that people looking for dates online must be extra suspicious of online personal ads to make sure they are genuine and not out to upsell them to a dating site subscription. Phishing and identity theft schemes are rampant and constantly evolving. From bank "notification" emails to domain registration emails to account notification to email attachments that load attack sites, phishing attacks have taken on a huge variety of forms that it is easy to get tricked into opening these types of emails or search results.
Source: Website: http://www.ixdownload.com
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