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Interactive Guide To Trade Marks We Use Without Realising

Images of trademarks we use without realising

Trade marks were invented for commercial purposes. They help protect a brand so that no one else can financially benefit from them. Some brands have become so successful that they are used by people without realising that they are trade marks.

There is an upside and a downside to having a very popular brand name. If a brand is very famous and it becomes a household name, then its a testament to the successful marketing of the company. However, this can be a negative thing for a trade mark attorney. Click on the link below to continue reading and see the interactive guide to trade marks we use without realising.

Click here to view the trade marks we use without realising

Why Your Startup Needs a Trade Mark?

A start-up lifting off by getting a trademark.

It’s hardly easy being a startup. There’s lots of competition and resources can be limited. But shouldn’t you be looking ahead and registering your trade mark? When you’re a startup, much of your time can be spent fine-tuning your product and perfecting your pricing. With so many things to juggle, it can be hard to turn your attention to your branding. But we all know that a well-known, well-loved brand is one of the most powerful business tools you can have.

Protecting your valuable assets

Just because you’re a new startup, it doesn’t mean that you don’t have valuable assets that need protecting. As soon as you are planning to invest in your branding and marketing, then your trade mark should be a priority. If you don’t protect your brand name (or it transpires that you have infringed someone else’s) then you may have to change your company name or trade mark further on down the line, which can be very damaging for business.

Everything you do as a startup is investing in your company’s name and goodwill. Registering a trade mark shows that you really believe you have something valuable and a reputation worth protecting. Registering a trade mark can also help you attract new investment. Potential investors will check if the company has a trade mark before they commit to you; having a trade mark shows you are serious and ambitious about the reach of your product or service.

Saving your startup from ‘trade mark trolls’

Registering a trade mark early in your business life also prevents you falling prey to ‘trade mark trolls‘. Trade mark trolls register a trade mark with no real intention of trading under it, but simply using the trade mark as leverage and a bartering tool to gain money from other companies. It is effectively trade mark squatting. If you fall victim to a trademark troll who is found to be acting in bad faith, you might not be forced change your name, but the legal fees can be very costly indeed. Startups and small-to-medium business are those most often targeted by trade mark trolls, and the cost of legal is fees is much more painful when relative to a small revenue. Prevalence of trade mark trolling is going up, with the cases in the US totalling 1401 in 2005, but jumping to 5842 in 2011, so now is a good time to protect your brand.

Having a unique brand name

Trade mark problems are not always so insidious. Sometimes, you might find that trade mark infringement can be totally incidental. Startups can have lots of competition. Make sure you’ve done your research and you’re not competing for brand name or identity, or you could be infringing on someone else’s trade mark by accident. In a business world with lots of competitors, it’s best to have a marketable brand that is unique to you. By registering a trade mark, you’ll create a distinct brand that is legally protected that ensures no other copycat startups exist. Remember that an unregistered trade mark, owning a URL or only registering a company name won’t give full protection to your brand against copycats.

What should you register as a trade mark?

There’s a number of things you should do as a startup before filing a trade mark registration. First, consider the part of your branding that you’d like to trade mark. Most usually, this will be your brand name, but it could be your logo, tagline or jingle. Once you’ve picked your distinctive element, run some checks to assure that no other companies are using the trade mark you want to sell their goods or services. Even if your mark is accidentally similar to another trade mark, you could run into legal trouble. Once your search has come back clean, you’re ready to file a trade mark registration claim.

Filing a trade mark can take some time, so you should start early in order to be protected effectively. The process of registering a trade mark generally asks for evidence from you about how you’re using the mark, though it’s not always a requirement. In many markets, if you don’t use a trade mark within 3 years you might not be able to retain it. Ideally, you’ll already have a fantastic product and a strong brand that’s ready to go onto the market within 3 years. Starting a new company is an exciting time when all creative cylinders are firing, so why not dream big and register a trade mark?

Whats the difference between copyright, trade marks, patents and registered designs?

Copyright, trade marks, patents and registered designs - whats the difference?

IP is essentially a person’s work that needs to be protected so that no one else can financially benefit or gain recognition for the work. There are four types of intellectual property (IP) which are listed as follows:

  • Copyright – Protection automatically granted to authors for their original, creative or intellectual work
  • Trade mark – A sign that distinguishes a brand from its competitors; the sign could be a word, logo or slogan
  • Patent – Protection for a new invention that hasn’t been introduced in the market yet
  • Registered designs – Protection for the appearance/design of a product

View the infographic below to see the difference between the four types of intellectual property.

Copyright, trade marks, patents and registered designs - whats the difference?

Protecting your Intellectual Property – Trade Mark Fight in the Digital Fitness Arena

A trade mark fight between Fitbit and Fitbug

Facts

Fitbug and Fitbit are two companies trading in digital fitness. Fitbug, a UK based company, started to trade in 2004 while Fitbit, a California based company, was founded in 2007. Since then, they have both been developing a series of wearable digital fitness products.

However, according to Fitbug, Fitbit’s products, website, and its trademark are too similar and create confusion in the mind of the consumers. Therefore, on 29 March 2013, Fitbug Holdings (plaintiff) filed a lawsuit in California against Fitbit (defendant) that alleged trademark infringement, unfair competition and business practices. The plaintiff claimed that it caused irreparable harm and damage to its company ant therefore asked the U.S. District Court in Northern California to order the defendant to permanently stop the use of its mark Fitbit, and prohibit the defendant from engaging in conduct that would continue to cause confusion between the two brands and services. At the time, the plaintiff produced evidence that it alleged led you to believe that the defendant was in fact, copying the plaintiff i.e similarities in the marks, similarities in some photos, images used in their websites and packages used for their products.

Decision

It looks like all those pieces of evidence have been submitted in vain as last week the District Court for the Northern District of California, San Francisco Division has granted summary judgment in Fitbit’s favour on the defence of laches.

Defence of laches

The defence of laches is a UK concept adopted in the US. It is an equitable defence that basically says that there has been an unreasonable delay by the plaintiff to bring its claim in a way that prejudices the defendant. It is left at the judge’s discretion and has a similar effect to a limitation defence so that if the judge is satisfied that there has been an unreasonable delay in enforcing an equitable right, it may strike out the claim. This defence has been developed based on the following maxim of equity: Equity aids the vigilant, not the sleeping ones. Therefore we can presume that the case Fitbug v Fitbit, the delay Fitbug Holdings took to bring its claim in 2013 was unreasonable due to the circumstances i.e Fitbit has been trading since 2007. It seems that Fitbug should have protected its rights and taken the appropriate legal steps far earlier. Waiting 6 – 7 years was too much for this court!

Could JE SUIS CHARLIE be registered as a trade mark?

Je Suis Charlie Trade Mark

The slogan “JE SUIS CHARLIE” has swept the globe fuelled by supporters of freedom of expression following the Charlie Hebdo magazine terrorist attack in Paris on 7th January 2015. Sadly opportunists are already trying to exploit this for commercial gain and attempts have been made in various countries to lay claim to the trade mark “JE SUIS CHARLIE”.
The first trade mark application was filed in Benelux Intellectual Property office just 24 hours after this tragic event and has caused widespread resentment amongst the public who see it as being immoral given the circumstances surrounding the slogan’s creation.
There is now debate as to whether these opportunistic applicants will succeed in their application to register the trade mark.

Article 3(1) (f) of the Trade Marks Directive (2008/95/EC) sets out a ground for refusal where the trade mark is contrary to public policy or accepted principles of morality. Although it may seem obvious to all of us that granting a commercial monopoly over a slogan that was created in such tragic circumstances would be incorrect and immoral, it is unclear whether or not the corresponding National Office would see this the same way. They must decide whether or not a trade mark is contrary to public policy or accepted principles of morality by looking at the intrinsic qualities of the trade mark applied for and not by the poor taste of the opportunistic person applying for the trade mark.

If the slogan is accepted as a trade mark and published by the Intellectual Property Office then owners of similar earlier trade marks may oppose to the registration if it clashes with the earlier rights. Charlie Hebdo magazine would be the most affected by the registration of this trade mark as the signs include a direct link to their magazine raising a high risk of likelihood of confusion with their magazine.

Furthermore, the term “JE SUIS CHARLIE” was created by Joachim Roncin, 30 minutes after the tragic event. This slogan could therefore also be protected by his copyright?
The issue in law is too complicated to be determined straightaway. However we believe that Intellectual Property Offices should reflect the views of their citizens and therefore condemn this opportunistic attempt at profiteering from the tragic events that affected the community as a whole.