Wednesday, June 06, 2007

There’s been a lot of talk lately in my creative circles and groups about trademarks, copyrights and infringements. One of my friends commented “The bigger we get, the more we have to protect ourselves, which is frustrating but a reality”. How true is that? I think so many of us are just now realizing that we’ve put a lot of hard work into becoming SOMETHING, but we still think of ourselves as just a small business. The next step up in growing your business is realizing that you have to protect your branding, your name and your reputation.

I am speaking with a trademark attorney myself and doing a lot of research about it. I’m going to write up a full article about our rights as small business owners, and thought everyone could benefit from reading part of the article.

What is a trademark?

Trademarks are generally distinctive symbols, pictures, words any combination thereof which is that used to identify and distinguish the goods or services of one company's goods or from another. Trademark law is designed to protect against consumer confusion.

“Trademark rights arise in the United States from the actual use of the mark. Thus, if a product is sold under a brand name, common law trademark rights have been created. This is especially true once consumers view the brand name as an indicator the product's source.”

In other words, once you brand yourself or your company, you are protected from Day One against anyone who may come along 6 months, a year or 5 years AFTER you have started using said mark as YOUR BRAND.

Under common law, trademarks are protected as part of the law of unfair competition. Registration is not required, but it does have some benefits. Federal Registration can take up to 2 years as a norm, longer if they have questions for you (I know - I’m sitting in their purgatory too!). So don’t think it’s a quick process. However, just know that you DO have rights, whether the registration process is finished or not (indeed, even if you are not registered, period). If you have been selling using your brand/mark, and have proof of it through regular business dealings, your domain name, blog posts -- anywhere your name/trademark is mentioned -- YOU have the law on your side.

What constitutes trademark infringement?

“If a party owns the rights to a particular trademark, that party can sue subsequent parties for trademark infringement. The standard is "likelihood of confusion." To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods.”

So what does that mean? For example: if someone starts a fiber business and names it anything like ‘Fluffy Pluck’, ‘Yarn Wrench’, ‘A Luxe Fibre’, ‘Material Swirled’, ‘Saintly Spinner’ or ‘Lampes Bumps’, that's infringement. Why? Because all of these businesses – Plucky Fluff, Yarn Wench, Luxe Fibre, Material Whirled, Saints and Sinners, & Lampe's Lumps have been around and have established business using their distinguishing name. Anyone who tries to name themselves so similar to another business is infringing upon the trademark rights of the original.

If this happens to you, remember YOU are protected under trademark law because you have established yourself long before the other person came along! Don’t feel that you have to “put up with it” or “hope they fade away”. YOU have the power and the law behind you. By choosing to name their business or products in an infringing way, they show that they are either lazy (didn't do the research) or that they intend to cause confusion and steal your sales.

You can stop them. Send a friendly letter or e-mail first. After all, it could have been a mistake, and we're all in this together. If that doesn’t work, however, then you'll have to be ready and willing to take the next step: hire an attorney, and have a "cease and desist" letter sent. IF they are smart, they will realize it’s a lot easier and cheaper to rename themselves, rather than risk a lawsuit they're bound to lose.

Because we ARE small businesses -- and close-knit communities working to support ourselves and our families while doing what we love -- we need to support and help each other out in all situations, especially those of this nature. Too often, when we see someone selling counterfeit stuff, or a new business with a name too similar to an existing one, we do nothing thinking there IS nothing that can be done. But apathy hurts us all in the end. If you see names, products, kits or ideas being stolen, send the information to the established business and let them know. If we don’t look out for each other, we are all lost.

By the way, I know that it's sometimes an acceptable situation, and I'm not saying we should police the web or shows! I'm just saying that I know that most people would appreciate getting a friendly ‘heads up’ (whether they are the offended or the offender!) before it escalates into something really awful. For instance, a retailer selling plushie kits for someone, but overlooked crediting the creator by mistake; or someone sold the rights to make such-and-such product to someone else.

I tend to first assume the best in people, and try to approach it that way. Sometimes it’s an innocent mistake. But sometimes, upon further examination, you may find that it’s not, and tougher action is required. Let's watch out for each other! I, for one, hate to spend my energy on things like this, but it comes with the business of being in business – ANY business!

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