Due sunday @ 8:30pm assignment two: birth of a trademark

QUESTION 1

Choose one scenario below, and a trade name, to use for the rest of the assignment.

Except for the Entrepreneur track, the scenarios 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.  Marks that describe the service or a feature/quality of the service, are considered weak. To review how to select a trademark, watch this 11-minute video from the US Patent & Trademark Office.

Scenarios

Entrepreneur – You have your own business going (or expect to launch one). You may search and clear your name for this assignment.

Fashion – 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?

Event Marketing/Management – 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 – 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, attention-grabbing and memorable name can you come up with?

Sports – 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.

Film – 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?

Indicate in the response area which scenario you pick and what name you will search.

Response • 5 points

0 wordsAttach file(s) Max size 500 MBDRAG & DROPsavecancelQUESTION 2

Is the Trademark Strong or Weak from a Legal Perspective?

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.

Is the mark you’ve chosen strong (i.e., suggestive, arbitrary or fanciful) or weak (i.e., descriptive of the goods/services)?

Response • 10 points

0 wordsAttach file(s) Max size 500 MBDRAG & DROPsavecancelQUESTION GROUP 3Trademark Clearance SearchGroup • 4 questions

SEARCH FOR POSSIBLE CONFLICTING MARKS AND DOCUMENT YOUR FINDINGS 

Once you’ve selected a name and product description, the next step is to see whether  any competitors have a name that might conflict with yours. If they are first (senior) and you are second, you may be an infringer. A “clear” search is one that uncovers no other marks that are confusingly similar in your product space.

In this part, you’ll conduct and document a trademark clearance search in three databases–US, State, and Google (representing common law unregistered marks)–and let me know whether you think the mark can be used or is blocked from use by a senior user.

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)

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.

QUESTION 3.1

US Patent & Trademark Office Search

This is a search of all applications and registrations of trademarks where the service is offered across state lines or internationally.

For a quick video how-to, click here (but note the USPTO home page has changed so use the link below to get to the correct database)

Search your exact term along with soundalikes here

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

In the response area, post your screen shot(s) and your conclusion about whether the mark appears clear or not.

Response • 10 points

0 wordsAttach file(s) Max size 500 MBDRAG & DROPsavecancelQUESTION 3.2

Search a State Trademark Database

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).

In the response area, post your screen shot(s) and your conclusion about whether the mark appears clear or not.

Response • 10 points

0 wordsAttach file(s) Max size 500 MBDRAG & DROPsavecancelQUESTION 3.3

Common Law (Unregistered Uses) Search

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 use—even unregistered marks can block you!

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.

In the response area, post your screen shot(s) and your conclusion about whether the mark appears clear or not.

Response • 10 points

0 wordsAttach file(s) Max size 500 MBDRAG & DROPsavecancelQUESTION 3.4

Based on your clearance search results, do you believe your mark is clear to use or that it’s use would pose a risk to where you’d be better off selecting a different mark? Why?

Response • 15 points

0 wordsAttach file(s) Max size 500 MBDRAG & DROPsavecancelQUESTION GROUP 4Trademark RegistrationGroup • 3 questionsQUESTION 4.1

Trademarks do not have to be registered to be enforceable–the owner of an unregistered mark can sue an infringer for unfair and deceptive trade practices based on state law. However, registration with the state or federal government offers benefits such as expanding the geographic territory where the mark is protected. A business’ geographical reach (where the business markets the activity and where its customers come from) determines the appropriate registry for the trademark. Please match the following market reach to the correct registry.

Matching • 5 pointsa. 

Trademarks used only locally or within a single state can only be registered on the:

Choose an answerb. 

Trademarks used in multiple states or internationally can be registered on the:

Choose an answerQUESTION 4.2

USPTO ID Manual – Describe the Product or Service

When registering a trademark, you will be asked to describe the goods or services you’ll be selling. The Trademark Office will then compare your mark to senior users (competitors in your category) to see if it is already taken. Your description may be broad or narrow, but should accurately represent your product or service.

To help you, the Trademark Office made a database of approved descriptions (the “ID Manual”) and the class of products or services related to the description. If you use one of their descriptions, you will save money on your registration application! Let’s try it out …

Search the ID Manual to find a good description for your service. Input search terms such as “sport” or “photography” or “public relations” etc., that directly describe what your business does. If you don’t find an applicable result at first, try a different search term. If you find a good description but it has {brackets} in it, delete the brackets and substitutewords that fit your service. Finally, copy the class of goods/services for your response.

Your response should include two items: (1) the description and (2) the international class of goods or services (the general category of services that your business falls into). You can copy and paste these from your search results page.

Response • 10 pointsID Manual Search Results ExampleID Manual Search Results Example

0 wordsAttach file(s) Max size 500 MBDRAG & DROPsavecancelQUESTION 4.3

Proving Use

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.

Watch this video from the USPTO regarding specimens: https://www.youtube.com/watch?v=S0Ue2PoIrNY

In the response area, describe two specimens you could submit to prove your use of the mark in commerce.

Response • 5 points

0 wordsAttach file(s) Max size 500 MBDRAG & DROPsavecancelQUESTION GROUP 5Trademark SymbolsGroup • 4 questionsQUESTION 5.1

What do the symbols “TM,” “SM” and ® mean?

Matching • 5 pointsa. 

Symbol for an unregistered mark for goods.

Choose an answerb. 

Symbol for an unregistered mark for services.

Choose an answerc. 

Symbol for a mark that is registered with the US Patent & Trademark Office.

Choose an answerQUESTION 5.2

If a company does NOT use “TM” “SM” or ® with their mark, is it still a legally protected trademark?

Choose one • 5 points

Yes, unregistered marks are protected under common law and can sue infringers for unfair or deceptive trade practices in state court.

No, a mark must be registered to have any protection.

QUESTION 5.3

The logo designer wants to know whether to put a TM or circled R on the logo. Since your new mark has NOT been registered with the USPTO yet, which trademark notice should be used initially —TM or circled R?

Choose one • 5 points

TM or SM

®

QUESTION 5.4How much does it cost to use the TM or SM symbol on your trademark?

Choose one • 5 pointsNothing–any brand owner can use these symbols for free!

$400

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