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  1. #1
    ABW Ambassador CrazyGuy's Avatar
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    Where do you folks in Americky find out what's trademarked and what's not?

    There's an enthusiastic rush of emails these days on the theme of "you can't PPC bid on these terms" and while I guess a company can set any terms they like and we choose to accept them or not ... these emails typically refer to their trademarked names.

    But when I search here:

    http://tess2.uspto.gov/bin/gate.exe?...glish&p_d=trmk

    I don't usually find the terms are trademarks.

    For example (not picking on them but they're today's example):
    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Affiliates may not bid on any ConsciousOne Trademarked names EVER including but not limited to ConsciousOne, ConsciousOne.com, and Conscious One.<HR></BLOCKQUOTE>

    Are these really trademarks? am I searching in the wrong place? are people playing fast and loose with their terminology?

    I should add that I don't actually go around checking all these claims but I found that search site when rebutting an eejit's domain dispute and it seemed to send him packing, so I subsequently tried a couple of others.


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  2. #2
    Mama in Charge Anne's Avatar
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    They may not be registered trademarks but they can be "implied" trademarks.

    If a company owns a name and/or a website, it is theirs. If you seek, to divert traffic or create dilusion, they would probably win in court becasue of implied trademark or use of the name typically gives rights.

    I am no attorney, nor do I play on on TV, but this is what I have learned from my own research.

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  3. #3
    Moderator MichaelColey's Avatar
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    Anne, can you tell me where you've researched this? I've never heard about "implied trademarks", and it sounds a bit questionable to me. Copyrights don't have to be registered, but my understanding is that you can't just claim to have a trademark.

    Michael Coley
    Amazing-Bargains.com

  4. #4
    ABW Ambassador CrazyGuy's Avatar
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    My understanding is/was that yes, in court someone could probably establish that they had rights to use a particular "mark" and others couldn't, but I thought that was not as clear-cut or formal as having registered a trademark.

    It does rub me up the wrong way if people throw terms about to try and give unwarranted weight to their claims or demands.


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  5. #5
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR> Notices of Rights in Unregistered Marks:
    The registered symbol, "®," the legend "Registered, U.S. Patent and Trademark Office," and the abbreviation, "Reg. U.S. Pat. & Tm. Off.," should be used only on, and in connection with, marks registered with the PTO. The use of these notices on unregistered marks is a crime, punishable by fines and/or imprisonment.


    Technically, providing notice of rights in unregistered marks is optional, but the prevailing wisdom is that such notice should be employed. Such notice is consistent with the rationale underlying proper trademark use, and enhances a mark's source-identifying function. Notice of rights in an unregistered mark, consists of one of the following notations, usually appearing above, and to the right of, the mark in which rights are asserted:

    (TM) for an unregistered trademark; and,
    (SM) or (TM) for an unregistered service mark
    <HR></BLOCKQUOTE>

    http://www.ggmark.com/guide.html

  6. #6
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR> It is worth noting that some countries, in particular the United States, also provide trademark rights for unregistered trademarks. The mere use in commerce of a particular sign can turn that sign into a trademark, which others may not use for the same types of goods and services <HR></BLOCKQUOTE>

    http://www.iusmentis.com/trademarks/...rse/procedure/

  7. #7
    ABW Founder Haiko de Poel, Jr.'s Avatar
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    It's what's called a Common Law Trademark. It specifically does not have to be registered to claim some level of Trademark protection. Now, that level of protection in this situation is not sufficient enough to drag anyone into court where a TM infringemnet suit will start at $250,000.00 (if an attorney even takes the case).

    <font size="2" face="Verdana">Haiko


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  8. #8
    Mama in Charge Anne's Avatar
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    What Haiko Said Michael, plus more info:
    ( said implied but the correct term is common law, I bow to our leader... :0) )

    What is a "common law trademark right?"
    Once a trademark is successfully registered with the USPTO, certain statutory rights are created protecting the trademark owner.

    ---->However, the general rule often referred to as "first-in-time"--The first person or entity to use a trademark in commerce receives common law protection for the use of that trademark. Thus, this "first person" can prevent others from using that same trademark...even if this "first person" never registered the mark. Therefore, conducting a Comprehensive Trademark Search is vital in helping you make the determination of whether to proceed forward with your trademark registration...even if the mark is NOT registered with the USPTO by another person or company.

    Although the majority of trademarks in existence are NOT registered, owners of UN-REGISTERED trademarks still have legal rights to the EXCLUSIVE use of their trademarks.
    Therefore, you must search ALL OF THE FOLLOWING public records sources BEFORE submitting your trademark registration application.

    Registered Federal Trademarks Principal Register.
    Registered Federal Trademarks Supplemental Register.
    Pending Federal Trademark Registrations.
    State Trademark Registrations (NATIONAL--for EACH state).
    Unregistered Trademarks (Common Law Trademarks).
    County Filings (NATIONAL--for EACH state).
    City Records (NATIONAL--for EACH state).
    State Licensing & Regulatory Boards (NATIONAL--for EACH state).
    The Yellow Pages (NATIONAL--for EACH state).
    The White Pages (NATIONAL--for EACH state).
    Domain Name Registrars.

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  9. #9
    ABW Ambassador CrazyGuy's Avatar
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    Thanks - some interesting references there.

    So - let me get this right ... that search I used would only show up registered trademarks - but it should show up all of them? Or could legitimate registered trademarks be recorded in one of Anne's list?

    Sounds to me that any claim to a trademark that isn't registered is only an assertion, and would have to be tested/proved in law before any action could be taken.

    So wouldn't it be better for companies just to give a list of terms they forbid PPC bidding on rather than using the T word so loosely?

    One of the reasons this rubs me up the wrong way is the increasing attempts to claim trademarks on common words or word combinations ... like "Crazy" or "Guy"


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