Can I Add The ™ Symbol To My Website ?

Such as Videos, Images, Advertisements etc..

~ Somewhere, out there.

Hi Somewhere, out there:

Definitely Maybe. Trademarks do not protect websites directly. Trademarks protect consumers. Trademark law seeks to prevent consumers from becoming confused about who is selling, sponsoring, originating or is otherwise the source of a good or service. So, you would not be trademarking the website (unless you were building websites for others), you would be trademarking the services (or goods) that you provide at your website.

A trademark provides certain rights. For example, when a competitor marks its stuff (goods or services) in such a way that a customer might become confused (likely to become)), the trademark holder can sue the competitor. Sometimes, there are other remedies, like UDRP proceedings to help with domain names and cybersquatters.

If you want to claim a trademark, you may need to first search to be sure that you have some right to use that trademark, that is, make sure that you do not infringe on the rights of a competitor.

Then, you may wish to apply for your own trademark, at the federal or state level. Or, you may wish to rely on your common law trademark rights. To make decisions about when to perform trademark clearance searches and what trademark applications to file, it is best to consult with an attorney.

For more information about how and when to use the trademark symbol, read this article:

How to use the ™ symbol

Good luck with your website.

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Can I use a trademark for a writing business?

I am starting my own business here in Wisconsin hopefully expanding nationally as well. I would be grant writing for non-profit organizations by contracting out my services. As I pick out my business name is there a trademark I can use to make it pop out.

~ Wisconsin

Yes. Trademarks can be used for for services (like grant writing for others). For example, this entry is in the Trademark identification manual

Class 35 Writing of grant proposals for non-profit organizations, educational institutions and other community organizations

via http://tess2.uspto.gov/netacgi/nph-brs?sect2=THESOFF&sect3=PLURON&pg1=ALL&s1=grant+&l=MAX&sect1=IDMLICON&sect4=HITOFF&op1=AND&d=TIDM&p=1&u=%2Fnetahtml%2Ftidm.html&r=0&f=S

However, please know, the drafting of the goods and services description creates the legal boundaries for your trademark: too narrow, and you may not have the protection you desire; too broad, and your trademark may be challenged later in court.

If you need help picking the name to make it pop, try a branding expert, not a trademark attorney.

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Can a trademark be declined if it contains words that may be taken to disparage a belief?

This is from a legal website regarding reasons for trademarks being refused:

The proposed trademark may disparage or falsely suggest a connection with persons (living or dead), institutions, beliefs, or national symbols, or bring them into contempt or disrepute.

This seems remarkably broad.

If there were a well-known, widely accepted belief and the word “real” or “true” were put in front of that belief, would that be grounds for refusal under the statement above?

~ New Mexico

Hi New Mexico,

Yes, trademarks are refused for suggesting false connections. Trademarks help to protect the consumer from becoming confused about who is providing goods or services. If you select a trademark that confuses a consumer into thinking that the goods or services emanate from you, but they really originate from another source, it can be rejected on these grounds.

Trademarks can also be refused for disparaging others. The words “real” and “true” (if used by themselves) do not suggest to me any false connection, rather the opposite, that this is the official origin. However, I am also sure that I could use “real” and “true” in a way that would create a false suggestion of connection to another institution or another source. From your question, it is unclear why you would be concerned that the word “real” or “true” could be used to disparage a belief.

This is the type of issue that can be researched before filing. For example, a trademark attorney can search past US Trademark Office appeals from refusals that relate to similar situations. Also, there could be other rules, regulations or procedures that give additional or more specific guidance. In short, this rule may or may not be the most specific rule to your situation.

If you plan to represent yourself before the US Trademark Office, it may be a good idea to review the applicable statute (15 USC 1125), regulations (CFRs), procedures (TMEP) and TTAB proceedings that interpret these issues. This is all available at the US Trademark Office website.

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I have trouble determining the first-use date of the following hypothetical example electronic product, which has a case and a circuit board inside. Both the case and the circuit board have the trademark on them.
Day 1. The assembled circuit board was ready.
Day 2. I showed the circuit board to audiences at a public conference, telling them this product would be ready for sale soon.
Day 3. The case was ready.
Day 4. The product (circuit board assembled in the case) was ready. It is shown at another conference.
Day 5. I gave a unit to a friend to show to a potential customer.
Day 6. I put the datasheet of the product on a web site.
Which day would qualify as the first-use date? What specimen should I use, the picture of the circuit board or the case as part of the final product?

~ Maryland

I believe the answer is none of the above.

The first use date is almost always the same as the first use in commerce date. The first use in commerce date is the day that the product is sold in interstate commerce. This is an important detail, because, if you get it wrong your trademark may later be invalidated in court.

If you can identify the earliest date that you sold a product or service across state lines, this would likely be correct. However, a sale within a single state may still impact interstate commerce, and will likely qualify.

This becomes complicated quickly, for example, with services that are delivered for free over the Internet. The important part of identifying a first use date is identifying the related evidence, documentation, or proof. This evidence will likely be needed in any future litigation involving your trademark.

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I would like to use one design that incoporates the American Flag within a logo and on several products. The logo/design does not demean or deface the flag and is slight variation of it. Is this allowable and “trademarkable”? Thank you.

It depends. There are many registered trademarks that incorporate aspects of the US flag. If you would like to see some of these registered marks, you can search. Go to USPTO Trademark web site and select “Trademark Electronic Search System”, affectionately known as TESS . Do a “free form” search with the following search terms:

 (24.09.05)[DD] AND LIVE[LD]

You will get a list of over 1600 trademarks that include the stars and stripes as part of the trademark.

An Authentic US Flag will be refused trademark registration.

In general, an authentic US flag cannot be trademarked. Instead, the trademark can simulate or stylize a flag.

1. The flag design is used to form a letter, number, or design.
2. The flag is substantially obscured by words or designs.
3. The design is not in a shape normally seen in flags.
4. The flag design appears in a color different from that normally used in the national flag
5. A significant feature is missing or changed.

For additional examination guidelines for trademarks that incorporation flags, refer to Examination Guide 2-07.

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1. There is a European company named “UYT Widgets”
2. They make widgets sold with the trademarks “UYT 1500″, “UYT 2050″, etc.
3. A US distributor that buys and resells the UYT widgets, obtained a trademark “UYT” under the widget class in the US. The US distributor hopes the US trademark will protect against the manufacturer using another distributor. Can the manufacturer make and sell in the US, with a different distributor, different widgets or the same widgets under a new product name, such as “TRE 1500″ made by “UYT Widgets”

Foremost, if the US distributor would like the exclusive right to distribute the European manufacturer’s widgets, the US distributor needs an exclusive distribution agreement. Trademarks do not confer the exclusive right to sell products. Trademarks protect consumers from becoming confused about who is selling them stuff. Protecting consumers from becoming confused is the real purpose of trademarks — Trademarks only protect the companies that own them indirectly.

Even in the best case scenario, the European manufacturer would always be able to compete (directly or with other distributors) simply by using a different trademark. Why? Because with different trademarks consumers would always be able to determine whether the product was coming from the US distributor or the European manufacturer.

Yet, the best case scenario seems very unlikely. The result in a legal contest between the US distributor and the European manufacturer may depend on with whom the consumer associates the widgets. Determining who the consumer is associating the mark with may depend on many factors. Does the distributor sell the goods to retailers or direct to the public? How are the widgets marked and who does the marking? Who else is distributing the widgets in the US? Is the US distributor involved in any type of quality checking of the widgets? Did the US consumer recognize the UYT mark prior to the US distributor’s sale or resale into the US? Is the US distributor providing any additional services, such as support, warranty work, service contracts, or customization? Why did the European manufacturer allow the registration of the “UYT” mark at the US Trademark Office? Was there any “bad faith” on the part of the US distributor during registration? What other circumstances surround the sale of the widgets? And, even worse, even if every factor was in favor of the US distributor, if the European manufacturer were “surprised” by the US distributor’s claim to a trademark, the cost of proving that the US distributor is correct in a court of law would be a very expensive endeavor. Moreover, the European manufacturer, unless they have an ongoing agreement to sell widgets to the US distributor, could simply stop selling them their widgets.

Why is there so much complexity to this question? Curiously, in most European countries, trademark rights are conferred only by the process of registration. So, a strategy like this may have more predictable consequences in European nations. In the US, trademark rights come from three sources: 1) Federal registration, 2) state registrations and state laws, and 3) rights that “spring” from the common law because of actual sale of the trademarked product. In this situation, there is likely a conflict between these rights at various levels. Furthermore, the US law will consider other circumstances, such as, the circumstances surrounding the registration of a mark.

So, if you are looking for exclusive rights to distribute, get an exclusive distribution agreement. If you wish, have this agreement deal directly with the issue of who will own, enforce and enjoy the US trademark rights to avoid any conflicts. An exclusive distribution agreement that assigns the US trademark rights to the benefit of the US distributor would certainly favor the US distributor. If you are thinking of your trademark claim as a indirect way of gaining the exclusive right or control to sell a product in the US without the consent of the European manufacturer, you are clearly headed for an expensive legal battle that you may not clearly win. Consult your trademark lawyer for advice on how to proceed. Your US registration is a valuable right, but, you must exercise some caution if you have not proceeded with the help of a trademark attorney.

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