In business, trademarks are essential. They are there to protect you and your company. Your trademark ensures that no-one can legally copy or duplicate your product.
Here is the definition of the trademark, according to the USPTD (United States Patent and Trademark Department):
A trademark includes any word, name, symbol or design, any combination used, or intended to be used, in commerce to identify and distinguish the good of one manufacturer or seller from those of any other manufacturer or sold by others, and to indicate the source of the goods.
For the purpose of this article it is assumed that the reader understands the basics of what a trademark is and what purpose it serves. This article will look specifically at the use of trademarks in E-Commerce Companies.
What you need to know about e-Commerce trademarks
Because E-Commerce takes place on the internet, many of your assets exists in the form of Intellectual Property. Your intellectual property is accessible to all, and that means it is harder than ever to regulate and control your assets.
That’s why it’s essential to protect your intellectual assets with trademarks, and understand enough about e-commerce trademarks to ensure that you are not infringing on someone else’s property.
When to seek professional help
Depending on what country you’re in, there are a lot of laws and regulations surrounding copyright law and trademarks. If you are hoping to make a living out of original intellectual property (such as publishing your written work or music) it is advisable to seek the assistance of an intellectual property lawyer to get you set up.
However, if you are running a store or brand online selling goods and services, you should be able to set up your trademarks on your own. Most Startups and smaller companies will want to do as much as they can themselves. These tips can help you do that.
3 tips every e-Commerce business needs to know about trademarks
Even if you are a small company, you should try to get at least your company name, domain name and key slogan registered. If you have a unique product, that should be trademarked as well.
The first user gets the trademark
In the US, unregistered trademarks are recognised. To create an unregistered trademark, all you must do is put the letters ™ behind the name of phrase or image you want to own. Needless to say, this can often lead to double-ups. In these cases, whoever used the trademark first usually gets to keep it.
Make sure that you are not trying to use someone else’s trademark. One thing you can do is run a search to find out if your desired trademark is in use.
If your trademark is available, the best thing to do is get it registered officially, right away.
Make sure you are not using someone else’s trademark right when you choose your domain name and business name. But also, when you are selling as a third party for manufacturers, it is essential to make sure that you have permission to use any branded marketing material on your store. If you are selling branded T-shirts you must make sure you have permission to use the photos and intellectual property associated with the products before you post them on your website (and ideally before you buy them).
It is easier to protect Distinctive trademarks, which means that the more you advertise and strengthen your brand the easier it is to protect your trademark, because it is associated with your company. It’s also important to note that just because you create a trademark doesn’t automatically give you all rights to it – especially if it is something generic or descriptive which could be used in normal language (for example colour names, nouns and so forth).
Make sure you own your intellectual property
If you have entered into a contract with a web development company to help you set up your store, you might think you automatically own any intellectual property (such as copy, images and descriptions and logos) used on your website. But it’s not always that simple. Make sure you check your web agreement thoroughly to find out who has rights to the intellectual property on your website.
The same applies to databases, source code and scripts on your website. If you are an e-commerce site, protecting your database is essential, both for legal purposes and for your business integrity.
If you are web developer who has developed code for a client’s site (or your own) you can trademark your HTML code and plugins, too. Make sure that it is stipulated in contracts with your clients that you own the right to patent any code you write to solve their requirements.
You lose your trademark protection if…
There are cases where you can lose your trademark protection. These include:
- Abandonment – if you stop using a trademark and it seems as if you won’t resume use, you forfeit it. A trademark has to be in frequent use to be protected.
- Generic Terms – if you attempt to trademark a term that is commonly used, for example if you want to call your music site “MUSIC” as the sole name. The name will not be protected as this is a generic term and can’t be owned. However, if you used it together with another word, for example “Orange Music” you could trademark that.
- Rights are limited to your goods and services – this means that is if someone uses the same name as yours, but the services are completely different, you won’t be able to stop them. For example, if you created an online game called “London Pests”, and then a London based company opened a pest control company called “London Pests”, you wouldn’t be able to stop them, as the services are entirely different and their business is associated with the name by nature.