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Why Trademark?

Written by: Frederic R. Abramson

Article Overview: If you own a business, you spend a significant amount of time and effort building it up to be successful. You need to protect it the same way that you protect anything else that is valuable to you. What is the best way to do that? With Trademarks.

Why Trademark?

1) What Is A Trademark?

A trademark is any combination of a word, name, symbol, or device that distinguishes the goods of one person from goods manufactured or sold by others. It does not just apply to manufacturing businesses, but also to service businesses where it is called a service mark, but is essentially the same thing as a trademark. Even a particular color that brands your business can be deemed a trademark. It could also be trade dress, i.e, the particular interior style of a restaurant that is unique to that brand.


2) Why Do You Need One?

The world is competitive enough. Why let someone take what you have worked so hard to build, when there is a remedy to prevent them from doing it? A trademark will be able to help you protect and brand your business without having to worry about competitors using and diluting your brand, and confusing your customers with a product of lesser quality. Having a trademark helps you obtain your niche in the marketplace, and helps customers recognize your brand. As a business owner you spend large amounts of money on advertising, marketing, and other methods of branding your products. Don't let that money go to waste by not protecting your investment in your business. When you trademark your name, logo, or trade dress, you are protecting both your business and your bottom line.

3) How Do You Get A Trademark?

There are many different ways to obtain trademark protection. You can obtain protection through the Lanham Act, which covers Federal Trademark Protection, through individual state laws, and through particular types of usage. You want to make sure it is done properly so you are getting the protection that you really want. Your attorney can decide what is best for your business.

4) How Do You Protect The Trademark?

A trademark can be lost when the trade name becomes so generic, or in such widespread use, that it no longer reflects a particular brand, but only the product. Examples of this are Band-Aid brand adhesive bandages, Scotch Tape brand tape, and Xerox brand copiers. One way to protect against your trademark becoming generic is making sure not to use the trademark as a substitute for the name of the product, such as in the examples above. Make sure the trademark identifies the brand. Come in and we can discuss what the best procedure for you and your particular business is, and how to protect your trademark once you have it.

Related Articles
  How to Register a Trademark
  Do You Need a Registered Trademark?
  Trademark a Name and Logo: Together or Separate?
  What's the Point of Getting a Federal Trademark?
  ® vs. ™

Article Tags: advertising marketing, bottom line, business owner, federal trademark, interior style, lanham act, line 3, many different ways, marketplace, money, niche, remedy, service businesses, state laws, trade dress, trademark protection, word name



Related Forum Posts
Re: About: product production! - [quote="FreshGoods":1yq3rfuo]Most importantly,with all that has been said...when is it absolutely appropriate to patent your idea? Why do people file for patents if it is not necessary? I would really like to know this please. I appreciate your helpful tips a lot! THANKS.[/quote:1yq3rfuo] Hi FreshGoods, Don't forget that you can always patent your product yourself (or even incorporate your company or apply for a trademark or copyright) and without the help of a lawyer. It would save you a lot of money. For instance, if I got my Trademark filed by my lawyer, it would've cost about $1200+. But going through the process myself by simply reading the official brochure only cost about $450 total.
How to protect my trade mark? - What affirmative action can he take, at least commercially, other than to "continue to sell online and in a small number of stores?" What if his means are limited? How much additional burden on the trademark holder, who has already jumped through the hoops of registration and is actually marketing his product, is it fair to place? Trademark registration, to have any value, surely ought to amplify a trademark's holder's ability to defend his/her mark. But if a mark is continually vulnerable to attack from those with deeper pockets, then registration would appear to have little evident or useful purpose, except among like-sized, or similarly endowed entities. But if you mean that he ought to take legal action rather than commercial action, does not the same rule apply: that whoever can pay the most generally will win? How this fosters a healthy public policy environment is difficult to discern. Would not a system of bribery ultimately be more efficient and predictable, if not more honest in the naive sense?
Information about doing franchise business in China - CHINA’S FRANCHISE LEGAL SYSTEM Introduction Franchises has a history of more than one hundred years in foreign countries, now it has developed to be a mature business mode, and it is widely used in many countries, especially the developed ones. Recently, franchises has been developing fast in China, covering more than sixty industries and trades such as catering, retailing, clothes-washing, indoor decorations and gym. However, the market order of franchises is chaotic in some industries and areas. There are also some illegal and criminal activities under the guise of franchises. Under such circumstances, several important laws have been promulgated to regulate the commercial franchising activities. Applicable Legislation The main legislative provisions governing the commercial franchising in the PRC are: the Measures on Administration of Commercial Franchises; and the Measures on Administration of Archival Filing of Commercial Franchises; and the Measures on Administration of Information Disclosure of Commercial Franchises Qualification for Franchisors According to the laws, the franchisors as those enterprises who own such business sources as registered trademarks, enterprise logos, patents and proprietary technology, and license these business sources to franchisees. Firstly, the franchisors shall be enterprises, excluding other economic organizations and individuals. Secondly, the trademarks which can be licensed to franchisees shall be registered trademarks. According to the Trademark Law, the trademarks, whether registered or not, are protected under the laws, though there is difference in the vigor and extents of protection. It seems that the Ministry of Commerce has restrictions in recognizing trademarks, since it only provides “own trademarks to be licensed to others” at large, which causes chaos in practice. In the cases relevant to franchising disputes which we provided legal service to, all of them involve the situation that the franchisors granted licenses of non-registered trademarks or the trademarks which were in application to others, and when there was infringement on trademarks, the franchisors were unable to prevent infringement on trademarks. Then the interests of the franchisees could not be realized. What’s more, franchising activities with non-registered trademarks also, to some extent, encourage commercial frauds. Thirdly, the logos, patents and proprietary technology of enterprises are included in the business sources to be licensed to others for the first time, which enlarges the application scope of franchises and will improve the development of franchises. Requirements to be Met in Carrying on Franchising Activities In addition to the condition that only the enterprises will be allowed to carry on franchising activities referred to above, the franchisors shall also have mature business modes, and are able to provide business guidance, technology support and training. The enterprises which copy the manuals, websites and enlisting documents of others, and have no service abilities for providing business guidance, technology support and training shall be excluded. What needs pointing out is that even these enterprises that are allowed to carry on business may face with the suits claiming them for unfair competition and infringements on intellectual properties. In addition, the Measures clearly request that the franchisors shall operate at least two directly operated shops, and the period of operation shall be more than 1 year, which aims to prevent frauds by the way of franchising. Information Disclosure Requirements and Regulation on Franchisors Information disclosure system is the core system of franchising. The laws provides that the franchisors shall establish and implement a perfect information disclosure system, and provide the relevant information and franchising contracts in written form, at least thirty days before execution of franchising contracts. It also sets out the specific provisions on the information which shall be provided by franchisors, including the basic conditions and commercial reputation records of the franchisors and their legal representatives, business sources owned by franchisors, abilities of franchisors to provide service to franchisees and management and supervision on business of franchisees, franchisee fees and the payments, and budgets for investment in franchising shops. To the franchisors that violate these provisions, the authorities in charge of commerce will order them to rectify, charge penalties and make public statements. Archival Filing and Public Announcement Systems To protect the franchisees’ lawful rights and interests, considering the asymmetric information between franchisors and franchisees, in addition to intensifying information disclosure requirements and regulating the activities of franchisors, the Measures also bring in the archival filing and public announcement systems. The Measures provides that the franchisors shall make a filing with the commerce administrative department within 15 days after the execution of franchising contracts for the first time. Anyone who intends to engage in any commercial franchise activities within a province, autonomous region, or municipality directly under the Central Government shall go through the archival filing formalities in the commerce administrative department of the people’s government of the province, autonomous region, or municipality directly under the Central Government where the franchisors are located. Anyone who intends to engage in any commercial franchise activities beyond a province, autonomous region, or municipality directly under the Central Government shall go through archival filing formalities in the commerce administrative department of the State Council. Any franchisor having been engaging in franchise activities before May 1, 2007 shall apply for archival filing at the commercial administrative department. The Ministry of Commerce has established the national network for archival filing work relating to commercial franchise. Any franchisor shall go through the archival formalities through the government website. The general public may obtain the following information through the government website of the Ministry of Commerce: (1)The registered trademark(s), enterprise mark(s), patent(s), know-how and other business resources of the franchisor; (2)The franchisor’s archival filing date; (3)The location of the legal business place, contact information and name of the legal representative of the franchisor; and (4)The location of the business place of the franchisee(s) within China. The authorities in charge of filing will cancel the archival filing if there is any following activities of franchisors, and make public announcement on the government website: (1) the business licenses of the franchisors have been withdrawn by the registration administrative authorities for illegal business; (2) the authorities in charge of filing receive judicial suggestion letter on cancellation of archival filing from the judiciary for illegal business by franchisors; (3) the franchisors conceal the relevant information or provide false information, which has been proved; (4) the franchisors carry on cancellation by themselves. In addition, the illegal activities of the franchisors will be announced to the public. By Erex Chen, a Chinese lawyer based in Shanghai.


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