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Yupper, Walmart service marked the word ALWAYS. I would argue its not defendable but they’re gonna do it anyway just to let competitors know they’re ready for a fight if they try to infringe. Be tough, be like Walmart.
OK folks. As much as I would like to believe that you are reading this post because you searched the internet and found me, its more likely I suggested you read this article and that’s how you got here.
I was listening to you talk about all the effort you put in to your product/service/thingy. You told me after tons of brainstorming you developed something great and your clients’ love it. Then the jerk down the street just ripped it off and tacked in on to their product, service or thingy within a few days of you releasing it to the world and within a few minutes of the copycat finding out about it. GRRRRRRRRR!
It took you days, even weeks, to iron all the details out and within a few hours that jerk is offering the same thing as you. Now you’re mad as hell and don’t know what to do about it.
Its also likely you don’t have a ton of time or money to protect yourself from this sort of stuff and on top of it you may not really have any legal recourse. But you might. I’ll bet you don’t even have enough time to even read this post. I really don’t have enough time to write it, but I’m just as pissed off as you so I’m doing it for all of us.
“Raising awareness is your most practical path to stop the copycat. If you do not take action, people may begin to think that YOU are the copycat.” We don’t want that. Nobody wants that except the copycats. ((HARRIETE ESTEL BERMAN))
Regardless, let’s keep this post a secret and those jerks won’t know the truth and are scared off by you implementing this little secret to protect your creativity and hard work from the evil concept thieves.
In short: add a Service Mark to all your creative taglines, slogans, catch phrases and even service offerings. Yup, just add “SM” at the end of it all.
Below are examples, definitions and rules regarding service marks I culled from the web. If you do spend the time to read them you’ll see large grey legal areas exist. Don’t let it bother you. Just move ahead with steps below to protect yourself.
The steps:Note: I’m going to use the term tagline to represent any and everything we’re talking about. So if it’s a slogan or service or whatever, I’m calling it a tagline.
[/text_output][icon_list][icon_list_item type=”check”]It’s unlikely you already have an SM attached to your tagline at this time. So go find the oldest vendor receipt or anything that will validate the earliest date the tagline was published. Just know where those documents are in case you need them someday.[/icon_list_item][icon_list_item type=”check”]Before the next printing, modify your tagline so it is a bit more protectable. Example: instead of “Made with Love” change it to“[your thing] made with love SM”. Get it published/printed.[/icon_list_item][icon_list_item type=”check”]Create a Cease and Desist form and send it to all the jerks you can find. Have your lawyer send them out for you OR allow you to send them on his/her behalf; it’s more powerful. The letters are attached, one would be from you the other would be from your lawyer. They are both are the same in essence.[/icon_list_item][icon_list_item type=”check”]Have fun and sleep well knowing you’re trying to protect your assets and the jerks are probably now not sleeping well.[/icon_list_item][/icon_list][vc_row_inner no_margin=”true” padding_top=”10px” padding_bottom=”10px” border=”none” bg_color=”#afd65c” class=”phl center-text”][vc_column_inner width=”1/1″][text_output]
Download the Desist Letters…
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I culled and highlighted juicy bits.
The service mark is also available in unicode as symbol U+2120; it displays on Unicode-capable browsers as ℠.
The HTML entity is ℠
If you don’t know what that is just have your web folks take care of it.
The rights to a service mark may be acquired in two ways. First, a business can register the mark with the government. Most service marks are eligible for registration with the U.S. Patent and Trademark Office. Several state governments have separate registration requirements. Once a service mark has been registered, the law typically affords protection to the first mark filed with the government. Second, a business may acquire rights to a service mark through public use. However, a mark must be held out to the public regularly and continuously before it will receive legal protection. Sporadic or irregular use of a service mark will not insulate it from infringement.
To receive protection, a service mark must also be unique, unusual, or distinctive. Common, ordinary, and generic marks rarely qualify for protection. For example, a professional association of physicians could never acquire exclusive rights to register a service mark under the name “Health Care Services.” Such a mark does little to distinguish the services provided by the business and tells consumers nothing about the health Care practitioners involved. The law would give full legal protection to these same doctors, however, if they applied for a mark under the name “Snap and Jerk Chiropractic Services.”
Once a business has established a vested right in a service mark, the law forbids other businesses from advertising their services with deceptively similar marks. Service mark infringement occurs when a particular mark is easily confused with other marks already established in the same trade and geographic market. Greater latitude is given when businesses that share similar marks are in unrelated fields or offer services in different consumer markets. For example, a court would be more inclined to allow two businesses to share the same mark when one business provides pest control services in urban areas, while the other provides film developing services in rural areas.
[highlight color=”black”]Registration of your name or [service] mark is not required. You can establish rights based on legitimate use of the [tagline/phrase], name or logo.[/highlight]
Informational Matter Slogans and other terms that are considered to be merely informational in nature, or to be common laudatory phrases or statements that would ordinarily be used in business or in the particular trade or industry, are not registrable …
It’s on these basis, for example, that the slogan THINK GREEN was rejected as a trademark because it was merely a statement of environmental awareness. The slogan, HAIR COLOR SO NATURAL ONLY HER HAIRDRESSER KNOWS FOR SURE was registered because consumers associated the slogan with a particular product. The only way to overcome this objection is to show that consumers associate the slogan with your products or services.
Typically, a slogan cannot be protected under copyright law as copyright does not protect short phrases. A short phrase can be protected in conjunction with an illustration or it may be protected in some cases, if it is taken from a larger well-known work, such as taking a line from a movie.
http://www.embassylawgroup.com/?q=node/39 (this website is no longer active)
[highlight color=”black”]Regarding how to safeguard a catchphrase, slogan or tagline with a trademark or service mark, technically, you do not have to register anything with the government, but only have to be able to show a legitimate use of the mark in order to establish rights to it. Nevertheless, it is a good idea to use the “TM” or “SM” designation to alert the public to your claim, which may be done without any kind of filing or registration.[/highlight]
“Use of a designation or slogan to convey advertising or promotional information, rather than to identify and indicate the source of the services, is not service mark use.”
…[highlight color=”black”]protecting slogans is often a very difficult proposition. However, from the marketing as well as the legal standpoint, the more that such slogans are used in tight connection to a product or service, the more weight such use may carry over time in terms of the trademark registration process.[/highlight] The user of the slogan should keep detailed records and notes as well as copies of all uses of the slogan in order to document claims of “secondary meaning,” both for purposes of federal registration as well as its claims under unfair competition and common law trademark laws.[/text_output][/vc_column][/vc_row][vc_row][vc_column width=”1/1″][vc_widget_sidebar sidebar_id=”ups-sidebar-keywords-for-hire”][/vc_column][/vc_row]