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 add the ™ Symbol to my website ? by Andrew P. Lahser, Patent Attorney and Trademark Lawyer

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 am trying to register a mark that was refused for ‘likelihood of confusion’ with a registered mark I already own. How do I respond?

I used the exact same description of goods on both marks since they are identical products. Each mark was created to signify different weight limitations, i.e. The Mark “A” device has a capacity of 30-60 lbs. The Mark “B” device has a capacity of 60-120 lbs. (and can be made custom as well). Customers would associate Mark A as light to medium weight, and Mark B would be medium to heavy weight or could be custom made, (even heavier).

~ Florida

Hi Florida,

You can claim ownership of a prior registration by amending your trademark application. You may wish to review TMEP section 1201 et seq. This may overcome the Examiner’s refusal.

I recommend consulting with your attorney prior to making the amendment. If you are representing yourself, you may wish to interview the Examiner prior to entering the amendment.

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Can i trademark a name that is already being used by a business that had not trademarked it?

~ New Haven, Connecticut

Maybe. Here are two important ideas you are missing: First, trademark common law rights happen automatically. Second, trademarks are really about preventing confused consumers.

Trademark Common Law Rights

Whenever commercial activity occurs, anything that consumers used to identify the source of the commercial activity gains a tiny bit of trademark protection. The more commercial activity, the more protection. This is called trademark common law rights.

Your question does not mention if the business name is merely used as an identifier (like the name of a trust or holding company), or, if it is used to engage consumers in commercial activity. If there is commercial activity going on, there could be trademark common law rights.

Consumer Confusion

Trademarks protect against consumer confusion for the particular commercial activity. So, if the commercial activities used in connection with your trademark are not similar to the commercial activities of the other business, then perhaps there will be no confusion and the trademarks can co-exist.

On the other hand, if the commercial activity is similar or related, then likely consumers will be confused, and, infringement may occur. In trademark law, it is not necessary to prove that consumers are actually confused (this can be difficult). It is only necessary to prove that consumers are likely to be confused.

To understand how common law trademarks work in your state, you might want to consult the Model Uniform Deceptive Trade Practices Act. Also, the INTA has the text of the Model State Trademark Bill. At this time, 46 states have passed some version of this bill.

Finally, you should know: the nuance of this question is way tricker than you might imagine. There are 50 states, and, all states treat trademark common law rights slightly differently. For a questions like this, you should find a local trademark lawyer that can help. Likely, the consultation will be short and to-the-point.

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I applied for a trademark for the product name “Tableware Cleaner”. It was denied as being to generically descriptive. Would I be allowed to amend it to “The Instant Tableware Cleaner” under the same application, or would I have to file a new one? Thank you.

~ Champaign, IL

Probably not. Amending a trademark will not typically overcome a refusal because any allowed amendment may not materially alter the trademark. So, changes can be made to the trademark, so long as, the changes do not “materially alter” the mark. For example, the trademark amendment you suggest would require the Trademark Examiner to start over with a new search, and possibly write another trademark office action with a new ground of refusal. That is a significant change.

Some examples of “amendments that do not materially alter the mark” might include:

1. Including a particular font, especially if the font was used in the trademark sample.
2. Including color, especially if the font was used in the trademark sample.
3. Correcting of a spelling error, especially if the trademark was spelled correctly in the trademark sample.
4. Deleting a font or color, so that the trademark would be in standard form.

For more information see the following Trademark Office Rules and Procedures:

• 37 C.F.R. §2.72
• T.M.E.P. §807.13 et seq.

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My business name is registered with the Secretary of State in Arizona. I found someone using “mybusinessname”@gmail.com. Can I insist they stop using it?? Can I make them surrender it?

Under trademark law, your competitor cannot confuse your customers to think that they are you, thereby stealing your business and interfering with your relationship with your customers. Here, it is not clear if you are concerned about customer confusion or you simply desire the gmail name for your own purpose.

Any rights you have under your AZ trade name or trademark are related to your common law trademark rights, so, without knowing the how, when, or where of your trademark use and the gmail account use, it is impossible to guess how your rights may help. That is, an Arizona trade name is simply a registration that allows entry into Arizona corporate names database. An Arizona trademark registration does confer additional trademark rights, but, it requires that the common law rights already exist.

I do not suggest sending a demand letter without consulting with an attorney. When you make a legal demand in another state you may become subject to a “declaratory judgment” lawsuit by the recipient of the demand letter.

On the other hand, you should check gmail’s terms of acceptable use. This gmail account may be abusing Google’s terms of service. Google might find that your trade name certificate is sufficient evidence of a trademark to help you.

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Major League Baseball uses the initials “MLB” as their trademark. Can I register a trademark using MLBXX (Each “X” represents a different letter) if my service is also baseball related?

Like any good netizen, you have eliminated just enough information from your question to make it “safe” for publication on the Internet — and not give away your idea. Yet, trademark questions of all kinds are judgment calls. When a trademark attorney answers a question, they think about the current situation and (probably unconsciously too) compare it to the prior cases that they have read about. I have read hundreds and hundreds (if not thousands and thousands) of cases. There is no rule at law that says if your trademark varies by 40% or more, it is not similar. The first goal of trademark law is to prevent consumers from becoming confused about who is providing them stuff. So, by trying to ask this question anonymously, you have neutered the facts so it would be impossible to even guess an outcome.

Your mark could be any of these: mlbXL, MLB09, mlBAG, MlBOY (lowercase L), MLBUT, MLBAT, MLBUZ. As you can see, each of these gives a different impression, or commercial impressions. So, some of these may be (confusingly) similar to MLB and some may not.

Likewise, simply stating “baseball related service” is not enough. Are you providing stats for MLB on your website? Selling instruction on playing baseball? Providing online retail for baseball equipment? Running an umpire’s union? Each of these service runs in different channels of trade that could effect the analysis. Plus, there are several more factors (known as the “Du Pont” factors) that could be considered in a likelihood of confusion analysis. Then, there is the obvious problem that the MLB mark is famous, and, is probably accorded more protection.

Why would you want to incorporate someone else’s mark? Major League sports of all kinds really value their trademarks. They spend a lot of time and money enforcing their marks. If you need to even “use” the MLB mark to refer to the MLB in a commercial context (and not even as part of your trademark), I would recommend talking to a lawyer first. The lawyer can help you understand how to fairly use the MLB trademark. Confusion would not be the only issue with using the MLB mark, dilution (because of the fame of the MLB trademark) could also be an issue.

So, if you want to avoid receiving a cease and desist letter from Major League Baseball, you should seek the advice of your trademark attorney. In some states (including Arizona, I’m not sure about Florida), the information that you provide to an attorney, even before you hire or pay them, may be protected by confidentiality. Having said this, do not provide confidential information before an attorney ask you for the information. Every attorney has a process for screening potential clients to avoid conflicts and protect existing clients. These “prospective client” laws seems unlikely to protect someone who just randomly sends confidential information to every attorney without invitation.

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