Expert answer:Birth of a Trademark
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BIRTH OF A TRADEMARK
PART 1
In this part, you will select a name and choose a
trademark category and description for your
service from the United States Patent and
Trademark Office official Identification Manual
(the “ID Manual.” Then tell me whether your
name is strong from a legal perspective.
Part 1a: Select a Scenario & Name
Choose one scenario from the following page to use for the rest of the assignment. Except for the Entrepreneur track, the scenarios below concern the relocation from New
Zealand of professional rugby player Dev Escary to start a professional league in North America. For legal purposes, the more distinctive the name, the better. Fanciful (made
up) names are the strongest because they don’t mean anything else in the world. Arbitrary or suggestive names are also strong and registrable.
Entrepreneur
Fashion
Marketing/Management
You have your own business going (or
expect to launch one). You may search and
clear your name for this assignment.
Mia Escary, member of a popular New
Zealand girl band, wants to launch a
fashion line. Brother Dev has promised to
let her design his team’s uniforms and fan
apparel. She wants to project a street chic
vibe with her brand. What name would
work well for Mia’s fashion brand?
Dev’s rugby team is launching in your town
and you’d love to have the team make an
appearance at a new festival you’re
planning. What name will you choose for
the festival?
Media
Sports
You are forming a public relations company
and learned about Dev and Mia’s relocation
from your good friend Ebenezer. This
presents the perfect opportunity to land
Dev’s rugby league and Mia’s band as your
first clients. What professional, attentiongrabbing and memorable name can you
come up with?
Dev Escary, former captain of the famous
NZ Blacks, has been recruited to put
together a professional rugby team in the
US—the first in the new United Rugby
Federation (URF). The NFL is backing the
effort and is encouraging him to come up
with a quality name for the team. Some of
the choices so far: Rough Riders ~ Braves
~ Red Rovers ~ Shrikes ~ Express ~
Rebels. Use one or pick your own name.
Intellectual Property Law
Film
Include
your scenario
and name
selection in your
presentation
Ebenezer Nguyen is making a
documentary about Dev Escary’s move
from New Zealand to start a professional
team. He’s starting up a production
company and has thought of the following
names: Polymer ~ 27 Signals ~ Ebenezer
~ Blast ~ EbenEye ~ Nguyen. Do you like
any of these or can you think of something
else?
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Part 1b.: Describe the product or
service using the USPTO ID Manual
When registering a trademark, you will be
asked to provide a description of the
goods or services the mark represents.
This serves as the basis for the
Trademark office to determine whether
your mark might infringe on a senior mark
user (competitor), so it must be accurate.
The description may be broad or narrow,
but should actually represent what’s being
sold.
The USPTO has a list of approved
descriptions applicants can use for their
marks. If you use one of these
descriptions, you will save money on the
application. Find an appropriate
description for your product or service by
searching the Acceptable Identification of
Goods & Services Manual database. If the
description you find in the Manual
contains brackets, you should revise the
bracketed area to meet your needs.
USPTO ID Manual
explained on the next page
Intellectual Property Law
Include the description
and the international
class of goods or services
from the ID Manual in
your presentation
3
Search the USPTO
Acceptable Identification of
Goods & Services Manual
database for a description of
your product/service.
The results:
this is the
international
class
Intellectual Property Law
Insert your general
search term here
The results: this is the description
(replace the bracketed area with
your own words)
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Part 1c.: Is the mark strong or weak?
Strong (fanciful, arbitrary, suggestive)
marks are those that do not directly
describe the goods or services offered
under the mark and thus can be easily
protected. They make the consumer have
to think to make the connection between
the brand name and the item itself.
Weak (descriptive) marks don’t require
such thought. They communicate the
nature of the products or services
immediately. Because little imagination is
involved, weak marks are not easily
protected.
In this regard, marketing and legal
departments are often at odds. Marketing
likes a descriptive name because it
immediately tells the consumer what the
product is or does. But such names are
usually harder to protect because they
typically incorporate words that every
competitor in the space needs to describe
their product. The law rewards unique,
distinctive names. Legal would prefer the
brand owner to choose a non-descriptive
mark even if it means having to spend
more money to educate the public about
the connection between the name and the
product.
Include your opinion of
mark strength in your
presentation
Is the mark you’ve chosen strong (i.e.,
suggestive, arbitrary or fanciful) or weak
(i.e., descriptive of the goods/services)?
Intellectual Property Law
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BIRTH OF A TRADEMARK
PART 2
In this part, you will search 3 different places to
see if your name is unique or if someone else is
already using it. Then, tell me about your
results.
Part 2: Conduct a Trademark
Clearance Search
A clear name (one that minimizes risk of
infringement) is one that is not confusingly
similar to pre-existing marks.
Consider:
1. Competing goods/services?
2. Similar appearance, sound, meaning?
3. Same stores or channels of distribution?
4. Trying to cash in on good will?
5. Sophisticated target market?
6. Overlapping target market?
7. Strong mark? Well known?
8. Actual confusion? (irrelevant to a product
that hasn’t launched)
Intellectual Property Law
SEARCH FOR POSSIBLE
CONFLICTING MARKS AND
DOCUMENT YOUR FINDINGS
Once a name is selected, a search must
be conducted to ensure that no
competitors have anything too close. If
your name is considered confusingly
similar to an existing name, whether that
name is registered or not, you run the risk
of infringement. A “clear” search is one
that uncovers no other marks that are
confusingly similar.
In this part, you’ll conduct and document
a trademark clearance search and make
recommendations as to use/depiction.
Three searches are required: US, state
and common law.
Include in your
presentation screen
shot(s) of search
results and explain
whether the mark
appears clear or not and
why (refer to factors
of confusing
similarity)
Review the TrademarkSearchHowTo100113.pdf presentation. This will show
you how to conduct a trademark
clearance search.
NOTE:If your search returns few or no
results, broaden the parameters to see if
there are any spelling variations that
might be soundalikes for your mark (think
of how your mark sounds in a radio
ad).The point is not simply to run the
search, but to look for other marks that
may be confusingly similar enough to
block your use.
See the next page for requirements.
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USPTO
Go to the United States Patent & Trademark
Office
Search Trademark Database > TESS >
Basic Word Mark Search
Search your exact term along with soundalikes
Screen shot your results page (“No TESS Results
Found” means no matches exists—a good thing)
If any marks are similar, screen shot those pages
and analyze whether they could block your mark
on grounds of confusing similarity
Intellectual Property Law
State
Repeat your search on the STATE level.
Here is a list of links to the state trademark
registries: http://www.uspto.gov/trademarks/
process/State_Trademark_Links.jsp.
Choose your state’s database or use the Florida
database at http://sunbiz.org/coritm.html if your
state database is not online or charges for
access, or you are in another country (unless your
national or provincial registry displays results in
English).
Screen shot your results page and any similar
marks’ pages
Common
Law
Repeat your search on Google (http://google.com) or
another search engine.
Review the search results to determine whether there are
any unregistered uses that might post a risk to using the
name. Remember, trademark rights begin with usage—
even unregistered marks can block use!
NOTE: For better results when conducting this search,
include a generic term that describes the product or
service your mark represents along with your proposed
brand name. For example, instead of searching “GoFast”
for writing services, search on “GoFast writing.” This
makes the results more relevant to your purpose. You can
even do a second search (optional) in a broader product
category, such as “GoFast media” to ensure no one is
even close to you.
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BIRTH OF A TRADEMARK
PART 3
In this part, you will tell me how you would get
the word out about your new name and what
uses you might avoid. You’ll also define the
various trademark symbols.
Part 3: Use the Mark
To be legally protected, a mark must be used in commerce
and used consistently. This means that goods or services
are actively being offered under the mark. Appropriate
trademark symbols enhance rights.
Include in your
presentation the answers
to the 5 questions posed
below
FIRST, EXPLAIN HOW TO USE THE TRADEMARK
Trademark rights only arise when the mark is actually used
in connection with goods or services in commerce (e.g., the
business has launched). When you register the mark with
the government, you have to prove to them that you are
using the name. This is done by submitting a “specimen”
showing that the mark is actually being used.
Demonstrate your knowledge of trademark layers of
protection by answering these questions:
1. What do the symbols “TM,” “SM” and ® mean?
2. If a company doesn’t use “TM” “SM” or ® with their
mark, is it still a legally protected trademark?
Include in your
presentation a description
of 3 types of specimens
that could be be submitted
to prove use of this mark in
commerce
Intellectual Property Law
Include 1 way that you
would NOT use this mark
— use or depiction of the
trademark that could harm
your brand value and
should be AVOIDED
3. What is the benefit of using a “TM” or “SM” notice with
the mark?
4. What is the benefit of using the ®?
5. The logo designer wants to know whether to put a TM or
circled R on the logo. Since your new mark hasn’t been
registered with the USPTO yet, which trademark notice
should be used initially —TM or circled R?
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Assignment Two: Birth of a Trademark
Due Sun Dec 3 @ 8:59 pm PST • 11% weight
INTRODUCTION
Choosing a strong brand for a business is an essential part of building business success. This
involves a number of steps beginning with the selection of a unique name that won’t infringe
on others’ marks, then using the name in a proper and consistent manner to build up consumer
recognition and goodwill, and finally, regulating use of the trademark internally and by others
to build good will and ensure distinctiveness.
OBJECTIVES
This activity achieves the following course objectives:
•
•
•
•
Explain the concepts of trademark law
Identify protectable trademark and rights holders
Describe how to preserve ownership rights in trademarks
Discern lawful use of others’ trademarks
Assignment Instructions
Complete all three parts: (the following is a summary; detailed instructions are in the document
below)
Part 1: Select a name, describe the product or service, explain whether the mark is legally
strong or weak.
Part 2: Conduct a trademark clearance search, recommend whether or not the mark can safely
be used.
Part 3: Explain how to use the trademark, explain the trademark symbols.
Deliverables Due
•
A presentation (Keynote or PowerPoint) containing screenshots and responses to the
challenges in the activity.
…
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