What’s in a Name? Choosing and Protecting a Strong Mark

written by: Polly Heseman
www.floridasmallbusinesslaw.com

Selecting a name for a new product or service is an important endeavor. A trademark or service mark is a term used to identify and indicate the source of a product or service. You want the mark to be something your targeted consumers will remember so that the product or service becomes associated with your business. A properly selected and used trademark or service mark will become a valuable corporate asset in which you will acquire the right to exclude other from competing with you by using the same or similar mark.
There are several ways you can acquire trademark and service mark rights. Trademark common law rights are acquired by marking products with the mark and selling them. Service mark rights are acquired by using a mark in association with a service and selling that service. The first to use a particular mark has superior rights to the mark and no one else can adopt the mark in the protected geographical area without infringing the trademark or service mark rights. Common law rights extend to the geographical area where the mark is used and therefore vary. State registrations extend protection to the entire state where the registration is filed whether or not the mark is used throughout the state. Federal registrations extend protection to the entire United States. However, the marked product or service must be used in more than one state to get a Federal registration.
Selecting a strong, protectable trademark or service mark can be counter-intuitive. Many businesses tend to select names that readily describe their product or service so that the consumers know immediately what they are getting. However, these are the weakest and least protectable trademarks or service marks. A mark must be distinctive in order to be protected by either common law rights or state or Federal registration. Under trademark law, terms used as trademarks and service marks are divided into five categories increasing in distinctiveness; a) generic; b) descriptive; c) suggestive; d) arbitrary; and e) fanciful. In general, only suggestive, arbitrary and fanciful marks can be registered with the state or on the Principal Register of the United States Patent and Trademark Office. Descriptive marks can be placed on the Supplemental Register in the United States Patent and Trademark Office, but rarely acquire distinctiveness because there is no exclusive use of the mark. Generic marks are never protectable.
A generic mark is the actual name of the product or service. In other words, “it is what it is.” If you have a used car lot and hang a sign that says “Used Cars,” it is not protectable and you would have no trademark rights in the name even if you were the only used car lot in the United States. A descriptive mark, on the other hand, "immediately conveys" the ingredients, qualities, or characteristics of the goods or services with which it is used. For example, “The Best Donut Shop in Boca” describes a good donut shop in Boca Raton. You would not be able to stop someone from opening a donut shop next door with the same name. So, while it is tempting to choose such a name, it is not necessarily wise.
The next three categories are protectable at common law and can be registered with a state or the United States Patent and Trademark Office. A suggestive term requires some imagination, thought, or perception to determine the nature of the goods or services from the term. The mark “Silver Spoon” for a restaurant suggests that the restaurant is refined and sophisticated. Arbitrary marks are commonly used words which have no connection to the product or service. For example, “Apple” for computers and “Camel” for cigarettes are arbitrary marks. The strongest marks, however, are fanciful. Fanciful marks are made up terms for the specific purpose of using them as trademarks or service marks. For example, “Google” for an Internet search engine and “Kleenex” for facial tissues are fanciful mark. Once there is wide spread use of a fanciful mark, it creates a stronger connection between the source of the product or service and the mark.
Once you have selected a strong, protectable, mark, it is important to determine if the mark is available prior to investing time and financial resources in using the mark. This requires an in depth search and should be conducted by an attorney experienced in trademark law. It is important to understand the extent and enforceability of your rights ahead of time. Then, you need to determine the best protection for how, and the extent to which, you will be using the mark. Again, an experienced trademark attorney can counsel you on what protection is available to you. So, now that you have the trademark basics, get creative and get on your mark!

Diversifying your Income
by Kellie Kuecha

One income households are almost a thing of the past. Women are starting home based or side businesses at an all time record rate and women working in Corporate America are also jumping on the band wagon. The idea of income diversification is not new, but with today’s economy, housing prices and corporate layoffs, many women and men are finding a means of additional income and in some cases, they end up leaving their careers to pursue their passion full time.

Women call our office on a regular basis seeking advice because they are looking to start a part-time business and they are not sure what to do or where to start. We first ask them to describe the things they are most passionate about. Most times we find that a network marketing business is best suited for the woman who wants to start something on the side 10-12 hours per week. Robert Kiyosaki, the author of Rich Dad Poor Dad, and Cash Flow Quadrant, calls networking marketing “The Perfect Business”. Donald Trump has been quoted saying, “If I could do it all over again, I would choose network marketing.” Unlike most other part time businesses, network marketing offers the appeal of “residual income”. Residual income, is also referred to as, passive income or re-ocurring income. Opting for an additional income stream, is a way for anyone to eliminate the glass ceilings of working a job or business that requires you to trade hours for dollars. With the right network marketing company, one could work diligently for a few years, and ultimately create an income that continues to come in, regardless of whether they continue to keep working.

There are many network marketing companies out there that vary in product lines and compensation plans but there are some important things to look for in the “right” company. Most major universities are teaching networking marking now as a viable way to earn a living. Women that Win has a vast array of knowledge in this industry and is here to help if you are one of the people who is looking for advice and direction.

Another very important side benefit to operating a home based business is the tax advantages that come along with having a “home office”. Many people are unaware that once you start operating a business from home, a percentage of your mortgage or rent, electric, office furniture, home computer and many other items become tax deductible giving you a much better tax return at the end of the year. Most of us despise the idea of dealing with any addition tax work at year end, but we came across a great product that can help you not only maximize your tax benefits, but show you how to do it easily, morally and ethically. Sanford Botkin of Tax Reduction Institute former IRS auditing agent and tax guru, offers a unique program that will save you thousands on your taxes. Sandy even shows you how to go back three years and amend your tax returns and most times, people will find they missed deductions that could have been taken. We highly recommend this for every business woman whether you are working for someone else or for yourself. Remember, the minute you start a home based business, you begin to qualify for taxes benefits that those without a home office cannot take.