As a website owner, you’ve experienced the firsthand excitement and thrill of designing a great logo, thinking of an ingenious slogan, or
coming up with a memorable and creative company name. You design the perfect website and announce it to the world. Sales are coming in, and things couldn’t be better!

That is, until you receive a legal notice in the mail – accusing you
of trademark infringement and threatening a lawsuit. What happened
here? You were so sure that your name was unique! There was no way that someone else could own that slogan, or have a similar logo!
Think it’s impossible? Think again.

It is now more important than ever to be aware of possible trademarks that may already exist, and what you can do to avoid a scenario like the one above. Unlike copyright infringement, which usually has a set fee that violators must pay, trademark infringement suits can range anywhere from thousands to millions of dollars – and beyond!

The whole purpose of a trademark is to prevent the sale of similarly
named goods and services, thus creating customer confusion over who owns what. Major corporations fight fiercely protect their names. In addition, since the expansion of the Internet, domain names have also come under fire. (See Entrepreneur fights Nissan Motor over Domain Name for a real life example of trademarks and domains coming under fire). But the legalities of domain names are for a future article.
For now, let’s concentrate on the basics.

Okay, So What’s the Difference between Trademarks and Copyrights?

While there are many articles online that explain what copyright is,
you’ll find very few trademark resources. Why? Because trademarks are complicated by codes, classes and other legalese that the average
person wouldn’t set foot near. That’s perfectly understandable.
However, saying, “I didn’t know…” in a courtroom won’t help you in a legal dispute. So – a short description for an trademark is that the trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. Generally it gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

But I’ve Seen Identical Names for Different Companies! How is this
Possible?

Goods and Services are separated into 45 classes. In plain English,
that means that there are 45 different categories into which a
trademarked name or symbol may fall. Thankfully, there are lists for
both goods and services – which means that one company can have a name for its category of products, and another can use the same name for a completely different category.

A good example of this is AMD (Advanced Micro Devices). You probably recognize those letters as the name of a company that builds computer processors. But AMD is also the name of a company that specializes in therapeutic exercise tables – American Medical Devices. The two products are completely different and unrelated to each other. People looking for processors are most likely not in the market for exercise products and vice versa. So the two identically named companies can coexist.

But with this same example comes a word of caution. If you have a
company name that is identical (although unrelated) to another
existing company – be very sure that the product or service you’re
offering now will not later grow or expand into the product or
service that the first company currently offers. Otherwise you’ll see
a repeat performance of the above situation – something that every
website owner wants to avoid!

For a list of the classes (which you’ll need if you ever decide to
register a trademark), see a comprehensive List of Goods and Service Classes

By now I hope that you have a good understanding of what a trademark is, what it protects, and how it differs from copyrights. In the next article, I’ll show you how to find out if a trademark already exists, and give you some of the advantages of trademark protection. See you then!

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Timo Jacob is a Trademark Researcher who owns ResearchTrack, a
business specializing in trademark, company name and brand name
research. He also performs website monitoring and market research for businesses seeking to gain a promotional advantage over their
competition.
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