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  1. #1
    Newbie Garzilla's Avatar
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    Question Explanation of TM
    Can someone give me a simple explanation of TM. We are getting close to starting up an online store. I researched the name we had in mind and found several TMs using that name. Excuse my ignorance, but I thought when you TM a name that it could not be used by anyone else. How does the TM work?

  2. #2
    Affiliate Manager Matt McWilliams's Avatar
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    Just to be clear are you referring to a trademark?

    For one thing, there is a big difference between:

    TM in superscript - unregistered trademark
    and
    R with a circle around it - registered trademark

    Or for that matter 'SM' which is a unregistered service mark.

    So using the 'TM' typically means a lot less than the 'R.' Unregistered trademarks place the burden of proof on the plaintiff. The reverse is true on registered.

    Anyone can 'TM' a name but of course another company could still sue over it. If neither has a registered trademark, then it's hazy on how the case might go.

    Anyone can USE a trademark term, even registered. The 1st amendment says that. Fair Use allows competitors to use trademark terms to compare products. So Pizza Hut can say their pizza is better than Dominos for example.

    I forgot where I was going with this.

    What was the question again?
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  3. #3
    Moderator MichaelColey's Avatar
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    Basically, it boils down to customer confusion. Will the name you choose cause confusion between your company and the trademark holder's company for a typical consumer?

    You can use the same name for different types of businesses. For instance, McDonald's is a (trademarked) fast food restaurant, but you could probably get by with running a resale shop called McDonald's. But if you tried to run a restaurant called McDenny's and had a logo with a yellow arch, you would probably get sued (and lose).
    Michael Coley
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  4. #4
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    http://en.wikipedia.org/wiki/Trademark

    See especially the discussion of "classes"

  5. #5
    Newbie Garzilla's Avatar
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    Sorry, did not mean to cause confusion. If I pick XYZ for my company name and I find out that multiple companies are registered as XYZ, where does the trademark law come into play?

  6. #6
    Newbie Garzilla's Avatar
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    Thanks Michael! That was the simple explanation I was looking for, now I can move on.

  7. #7
    Moderator MichaelColey's Avatar
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    Of course I should say... I'm not a legal expert. You should check with an IP attorney. That's just my understanding.
    Michael Coley
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  8. #8
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    Do you think you would be alright with a domain like biggestblockbusters.com a site with info on movies making over $100 million. Would blockbuster.com have an issue?

  9. #9
    Newbie Garzilla's Avatar
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    I wonder if my wife could use her pre-paid legal benefits for this?

  10. #10
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    Come up with a unique name from the beginning. Why tempt fate?
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  11. #11
    Affiliate Manager craigstephen's Avatar
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    Absolutely, agreed with Loxly, why to get into 'war or brands' as you said you are begining the business.... and if there is a company already created with that brand/logo/brand name or even a website. You must have to establish first.... or/otherwise it may harm your business in one or multiple concerns

  12. #12
    Newbie Garzilla's Avatar
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    It's not that I was looking to rip someone off, we thought we had a unique name. Then after researching found out we were not the only ones. Our product line is different from all the others. I get what y'all are saying, but if there can be XYZ Steak House and XYZ Clothing, then why can I not have XYZ Pest?

  13. #13
    Affiliate Manager BlogBonnieBlog's Avatar
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    one downside to using a name that is already somewhat "in use" is that it's not going to be available in a lot of the social media sites, domains, registerable for your state, etc. which then limits you on branding potential.

    If there are registered TMs for your potential name, it's not worth it. If you want just a glimpse of what COULD happen to you, read this http://www.nissan.com/ and click on the "Nissan Motors Lawsuit Against Us" near the top of the page. Never underestimate the deep pockets of corporate america

    I'm for creativity and coming up with something unique

  14. #14
    Affiliate Manager Matt McWilliams's Avatar
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    I'm not arguing either side other than to say that Nissan Motors (whose North American HQ happens to be here in Franklin, TN) has a federally registered trademark and the suit was about them advertising cars on their site.

    While I may disagree with their bullying tactics, the letter of the law seems to be in their favor, as my simple mind understands it at least haha.

    If "XYZ" is a federally trademarked term, I would not start a new company with that name.

    For instance, we have the phrase "Learn and Master" trademarked (happened within the past 6 months actually).

    We have "Learn and Master Guitar" etc.

    If someone came out with a "Learn and Master Photoshop" course and decided to sell it next week, we would have a very legitimate case against them, even though we do not have such a course. Because their could be brand confusion, people might think it was our course.

    You are right to post here and ask opinions of this first. I hope it helps you avoid some ridiculous problems down the road. Loxly's advice was spot on...why take the chance that it would cause problems?
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  15. #15
    Newbie Attorney Jaffe's Avatar
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    To protect a trademark through actual use requires the user to place a superscript TM after the Trademark. The owner of a registered trademark uses the symbol ® to indicate a Registered Trademark.

    Trademark owners may commence legal proceedings to prevent unauthorized use of their trademark under the Latham Act. While the level of protection for a registered trademark is greater than that of a common law trademark, any trademark owner may pursue their property rights and prevent the unauthorized use of their trademark by others. Factors affecting the owner’s rights include whether the trademark is registered, the similarity of the trademarks and the actual products, and whether the trademark is well known. The final test is always whether a consumer of the goods or services will be confused as to the identity of the source or origin.
    Last edited by Attorney Jaffe; June 26th, 2010 at 02:48 PM. Reason: spellilng

  16. #16
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    Posting real quick because usually when somebody is here saying they're an attorney, people aren't sure. But I copied and pasted a snippet of your post and found it on one site, yours. So it does look like you are. Nice to have you here. (unless somebody else is posting using your info)

  17. #17
    Newbie Attorney Jaffe's Avatar
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    Thanks for the welcome, Trust, I hope that I can be of help to my fellow members.

    I am new here and therefore cannot use a signature or post my web site. For those who want to check me out you can search my full name, Andrew Jaffe.

  18. #18
    Moderator MichaelColey's Avatar
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    Quote Originally Posted by Attorney Jaffe View Post
    Thanks for the welcome, Trust, I hope that I can be of help to my fellow members.

    I am new here and therefore cannot use a signature or post my web site. For those who want to check me out you can search my full name, Andrew Jaffe.
    Since it looks like you'll be around from time to time, I've extended Signature and PM access to you so that members who might be interested in your services can contact you.
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  19. #19
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    Quote Originally Posted by Attorney Jaffe View Post
    To protect a trademark through actual use requires the user to place a superscript TM after the Trademark. The owner of a registered trademark uses the symbol ® to indicate a Registered Trademark.

    Trademark owners may commence legal proceedings to prevent unauthorized use of their trademark under the Latham Act. While the level of protection for a registered trademark is greater than that of a common law trademark, any trademark owner may pursue their property rights and prevent the unauthorized use of their trademark by others. Factors affecting the owner’s rights include whether the trademark is registered, the similarity of the trademarks and the actual products, and whether the trademark is well known. The final test is always whether a consumer of the goods or services will be confused as to the identity of the source or origin.
    Are you open to answering a couple of TM/domain questions here? I had something I was wondering about.

  20. #20
    Newbie Attorney Jaffe's Avatar
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    Ask Away - Either here or in a new thread.
    Andrew M. Jaffe | [EMAIL="attorneyjaffe@aol.com"]Email Me[/EMAIL]
    Attorney at Law
    330-666-5026 [url]www.netlaws.us[/url]

  21. #21
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    Last edited by Trust; July 19th, 2010 at 01:38 PM.

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