Ian Ivey
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 Re: Trademark your business name? | |
A trademark is any wording, symbols or designs, or other such matter, that you use to identify yourself to consumers as the source of the goods or services you provide. When people say they want to \"trademark\" something, usually they mean they want to \"register\" something that is already functioning as a trademark (or \"mark\").
You have common-law (i.e., state law) intellectual property rights in your trademark from the first time you use it in commerce. Your common-law rights are defined in part by the geographic region in which you use that mark. You can defend your trademark against infringement in state court, without ever registering the mark with the state or federal governments.
But in the US, you can also register your mark with the state government, and separately with the federal government. The purpose of registration is to provide effective notice to all parties within the zone of registration (i.e., one state or the entire country) that you claim ownership of that mark.
Federal registration is done in the U.S. Patent and Trademark Office. Registering your mark with the USPTO gives you additional rights beyond your common-law rights, such as the right to sue in federal court in your own jurisdiction if, for example, someone in another state infringes your mark. A federal registration also serves as evidence of your ownership of the mark. This is valuable because, otherwise, you would bear the burden of proving that you were first to use the mark in commerce and were the legitimate owner of that mark. Registration shifts the burden to the accused infringer to prove that your claim of ownership is invalid.
A federal registration therefore greatly aids in reducing the costs of protecting your trademark. First and foremost, it strongly enhances the threat you pose to an infringer, by placing burdens of cost (defending in a distant jurisdiction) and proof (reducing the work you have to do to prevail in court, and increasing the infringer\'s work).
That doesn\'t mean it is inexpensive to protect a mark. But it does improve the chances that an angry-lawyer-letter or two will cause an infringer to cease infringement without further action.
Registering names of people
Individuals may register their own first+last names (e.g., \"Ian Ivey,\" or \"Ian Ivey Photography\"), or last names if used in conjunction with descriptive or other wording (e.g., \"Ivey Photography\"). You generally cannot register merely a surname by itself (e.g., \"Ivey\"), but adding other wording will make it registrable. (That\'s mainly because other people with that surname should be allowed to use it in their business names.)
You may want to register your first+last name if you use it as a trademark (with or without descriptive wording such as \"Photography\"), if you\'re concerned that someone else might begin using the same or similar first+last name.
Chris\'s friend\'s case is unusual. \"Charlie Brown\" is a registered trademark of Peanuts Worldwide, LLC (presumably the owner of the Peanuts cartoon strip). {EDIT: Correction -- Peanuts has filed a pending application to register that mark, and it has been published by the USPTO, meaning the examining attorney has tentatively approved it for registration, pending proof of use of the mark; this doesn\'t much change the rest of this comment, but I wanted to correct the error.} That registration {application} recites the following goods: \"Motion picture films featuring animated cartoons; downloadable motion pictures featuring animated cartoons; downloadable music, ringtones and electronic games via the Internet and wireless devices.\"
The fact that the mark is already registered {filed} for motion pictures presents a problem. Photography and motion pictures are in some ways related goods. It therefore increases the odds that Chris\'s friend might be 1) refused registration by the USPTO because the mark is confusingly similar to a prior existing registration {still true}, and 2) infringing that registered trademark by using \"Charlie Brown\" in connection with a photography {slightly lower risk, but still a risk}.
If Chris\'s friend were my own client, I\'d probably advise him not to use \"Charlie Brown\" with photography, to avoid the risk of receiving a lawyer-letter from Peanuts Worldwide at some point after he invested lots of time and money in promoting that mark. Alternately, if he asked me to do so, I might contact Peanuts Worldwide to arrange something called a \"consent agreement\" outlining his use of the mark limited to photography services prior to investing in that mark.
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