DBAs, TMs & .coms

Written by Elena Fawkner

Continued from page 1

Absent federal registration, you would have to prove these things in court as preliminary questions of fact. Imagine trying to satisfy a court that you are entitled to exclusive nationwide use ofrepparttar mark if you've only been usingrepparttar 119309 mark in two states. Other benefits of federal registration include: (a)repparttar 119310 fact that registration acts as constructive notice of your claim torepparttar 119311 mark; (b) federal court jurisdiction can be invoked; and (c) registration can be used as a basis for obtaining registration in other countries.

=> What Can Be Trademarked?

It may be easier to answer this question by looking first at what cannot be trademarked. The U.S. Patent and Trademark Office (PTO) won't allow you to register a mark that is not distinctive (discussed below); that is already in use or that contains names of living persons without their consent;repparttar 119312 United States flag; other federal and local government insignia; name or likeness of a deceased U.S. President withoutrepparttar 119313 widow's consent; words or symbols that disparage living or deceased persons, institutions, beliefs or national symbols and marks that are judged immoral, deceptive or scandalous.

=> Distinctiveness

As a general rule, a trademark must be distinctive in order to be accepted for registration. This is an enormously complex issue in trademark law and beyondrepparttar 119314 scope of this article. But for our purposes, just keep in mind that a mark that is in ordinary or common usage inrepparttar 119315 community will not be capable of registration because no one person can be said to berepparttar 119316 "owner".

For example, let's say your business is selling still life paintings. You would have trouble registering "Still Life" as a trademark because it is a term in common usage and has a general meaning inrepparttar 119317 community. (Note though that certain types of marks while not distinctive YET may become so inrepparttar 119318 future, i.e. they are capable of acquiring a secondary meaning. Such marks may be eligible for registration and limited protection onrepparttar 119319 supplemental trademark register. For more on this, consult your attorney.*) (Onrepparttar 119320 other hand, you may well be able to registerrepparttar 119321 name Still Life as your fictitious business name providedrepparttar 119322 same or a deceptively similar name is not already registered in your county.) In order to maximizerepparttar 119323 chances of your trademark being accepted for registration, therefore, try to come up with a "coined" or "fanciful" name. The example often given by trademark lawyers of a particularly successful coined name is Kodak. It's a name that means nothing apart from its association with cameras and now expanded lines of products but is immediately identifiable by anyone who sees it as a trademark ofrepparttar 119324 Eastman Kodak company.

So,repparttar 119325 more novel, unique and fancifulrepparttar 119326 name,repparttar 119327 more likely you will be able to register it federally.


So, how does your domain name figure into all of this? In particular, what isrepparttar 119328 interrelationship between registered trademarks and domain names?

=> Domain Names VS. Trademarks : David VS. Goliath

As a general rule, asrepparttar 119329 law presently stands, it is *possible* to register any domain name that isn't already taken without regard to whether that name is a trademark owned by a third party. *But do so at your peril*. Courts are increasingly siding with trademark owners against domain name holders even whenrepparttar 119330 domain name holder acquiredrepparttar 119331 domain name with perfectly innocent intentions, i.e. with no intention of infringing onrepparttar 119332 trademark or holding it for ransom (cybersquatting).

=> Domain Names AS Trademarks

Let's say thatrepparttar 119333 domain name you want to use is not already a trademark. Can you register it as a trademark? Depends. Maybe.

A distinctive, coined domain name may well be capable of trademark registration forrepparttar 119334 reasons discussed above. An example is my own domain, ahbbo.com. The word "ahbbo" has no common, ordinary meaning and so would most likely be capable of being registered as a federal trademark. If I tried to registerrepparttar 119335 trademark "A Home-Based Business Online" I would have trouble even though I own that domain name becauserepparttar 119336 words are, in one variation or another, in common, ordinary usage.

To be registrable, however,repparttar 119337 domain name must act as a source identifier forrepparttar 119338 product or service offered byrepparttar 119339 business (simply because ANY trademark must identify and distinguishrepparttar 119340 source ofrepparttar 119341 product or service), and not merely act as an address used to access a website.


Let's go back now and answerrepparttar 119342 original question:

"... I'd like to register my business name withrepparttar 119343 proper town authorities as a sole proprietorship. To protect myself and my business name from being copied and altered, do I have to register any and all variations ofrepparttar 119344 name? And is this done separately or is it done underrepparttar 119345 one application? ... Is this what I need to do in order to stop anyone from using a variation of my business name? And can my business name be trademarked along with its variations?"

=> "To protect myself and my business name from being copied and altered, do I have to register any and all variations ofrepparttar 119346 name?"

No. The question misconceivesrepparttar 119347 function and effect of a fictitious busness name. The only function ofrepparttar 119348 registered business name is to allowrepparttar 119349 consuming public and others, such as suppliers, to ascertainrepparttar 119350 legal entity behindrepparttar 119351 fictitious business name. It is notrepparttar 119352 business's name that requires protection from being copied and altered, it isrepparttar 119353 business's trademark(s). If you are looking to establish a "brand" with your business name, make surerepparttar 119354 name isrepparttar 119355 same as your trademarks and register your trademarks.

=> "Do I have to register any and all variations ofrepparttar 119356 name?"

This was asked inrepparttar 119357 context ofrepparttar 119358 business name. Forrepparttar 119359 reason just given,repparttar 119360 answer is no. But forrepparttar 119361 purposes of our trademark analysis, let's reframerepparttar 119362 question. Is it necessary to register any and all variations ofrepparttar 119363 trademark?

No. Once you have federal trademark protection for your mark,repparttar 119364 trademark examiner will (in theory, at least) not allow anyone else to register a mark that is identical or deceptively similar to your mark.

Elena Fawkner works for a law firm practising in these areas. If you would like professional assistance in connection with any of the issues raised in this article (or small business issues generally), contact Elena at mailto:elena@fawkner.com?subject=legal_help .

Cyberlaw 101

Written by June Campbell

Continued from page 1

5. If linking to another web site, avoid deep linking and avoid capturingrepparttar other site in your frames. Most web site owners welcome links to their site because links generate traffic and increase their ranking with some search engines. Rarely will an owner complain if you link without permission. However, you are not entirely safe. Legal battles have been fought regarding unauthorized linking. To minimize your chances of running into trouble, make sure you link torepparttar 119308 home page instead of to an inner page and coderepparttar 119309 site to open in a new window instead of within your frames.

6. Create an Internet and email policy for your employees. If your employees are charged with sending harassing emails or distributing copyright MP3 files while at work, for example, you can be held responsible. Having a short email policy stating that your employees must use email in a legally responsible manner can go a long way to protecting you in case of problems.

7. If purchasing packaged content for distribution and publication, be sure you are dealing with a reputable company. There have been instances of companies selling packaged content withoutrepparttar 119310 permission or knowledge ofrepparttar 119311 content creators. This is copyright violation, and you could be putting yourself at risk if you use these materials.

Finally, please remember that these tips should not be construed as legal advice. Consult with legal counsel for matters specific to your own situation.

June Campbell, "How-to" Booklets, Guides, Templates, & eBooks -Business proposals -Business plans, -Joint Venture Contracts... More! Visit to Claim Your FREE GIFT! (http://www.nightcats.com)

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