Naming and Copyright-Where Does it End?

[beck180]

I know it is against the laws of the universe to use trademarked or copyright names such as alot of Victoria Secret and many others, does this apply to other names as well such as a name that might be associated with someone else? such as say for instance the Dr. Feelgood fragrance that is readily available?

It sure seems that this line is getting very blurry and this name game is getting out of hand! Where does it stop pretty soon we won't be allowed to use anything anymore. Some people are just so petty when it comes to this (sorry Tom..don't sue me for that :highfive: ) I'm surprised the name "Candles" was never trademarked and considered illegal to use.

I mean this has to stop somewhere, right?

Just wondering if this botheres you as much as it does me...

[Jadryga]

Methinks this should be in the Business Side section.

Though, what exactly do you mean by "might be associated with someone else"? Dr. Feelgood is a toughie, since the name is used for an English band, a Kama Sutra fo and a BeneFit primer.

[jaybyrd]

Dr. Feelgood is a toughie, since the name is used for an English band, a Kama Sutra fo and a BeneFit primer.

Not to mention a less than complimentary slang phrase, in my vocab.

I agree with the rant. I do believe in protecting original creativity from being ripped off, but it can really inhibit one's own creativity when you never know if you may be sued or worse at the drop of a hat. Not sure if much can be done about it, though.

[beck180]

It's also a song by a formerly very popular american band that used to get a ton of airplay on rock radio, and still does to some extent. I'm sure they have better lawyers than I.

[Hibiscus]

Don't send me no doctor! filling me up with all those pills, got me a man named doctor feel good and ohhh that man takes care of all my pains and my ills, his name is, doctor feeeeel goood in the morning and taking care of business is really this mans game. After one visit from dr. feelgood, you'll understand why feelgood is his name!.. :laugh2:

Aretha Franklin

[sweetiepie]

I do believe in protecting original creativity from being ripped off

I agree with this idea wholeheartedly.

Now, I'm not picking on anyone or singling anyone out, but I've always wondered why this type of belief doesn't extend to fragrance blends.

Why is not ok to have a name that's too close to another biz's, but it's perfectly ok to use duplicate fragrances?

Why is it ok to profit from the thousands of dollars worth of research and marketing done by another company? Then to turn around and gripe because they get pissy if you use the same name, seems like insult to injury to me. It's the creative equivalent of riding on someone else's coattails.

It seems like almost all of the fragrance oils available to smaller businesses are ripoffs of some larger company. Why not demand a little creativity from the suppliers?

This is reason 1001 why I don't use fo's.

[Jadryga]

Well, from what I see there are some people who create their own blends, though honestly I wouldn't be able to tell since I'm not an fo person...

I was a little unclear about the argument at first, but sweetiepie's last post finally cleared it up and I actually understand it now Yeah, I agree there should be no griping if the big companies get miffed about the same name being used.

In a perverse way it's a compliment, though I completely understand. My mother's a fashion designer, and we had a custom order done for a pair of hand-embroidered high-grade cotton pants based on a color scheme our designers came up with. A few months after we put it up in our boutique, we went to a mall and saw a small stall selling the EXACT same design, but of a much lower quality (cheap polyester fabric, stiff machine embroidery, etc). Some local person had apparently gotten a hold of a pair of our pants and copied the whole thing. My first reaction was to burst out laughing. My mother on the other hand, was fuming.

It's potentially damaging for us, actually, since we're supposed to be selling exclusive items. It's bad if a customer comes into our shop, sees a design and goes "Oh, I saw something like that selling for cheap at some random stall at *** mall."

On a side note, one woman actually came to us and asked us to alter a pair of knockoffs (we used to offer free alterations for our goods) and she couldn't understand why we said NO. Her reasoning was "It's the same thing, isn't it?". Geez.

...Awkay, sidetracked enough. Back to fo's.

[jaybyrd]

Something that is particularly frustrating, though, is when someone copyrights or trademarks a common, everyday word or phrase, so that one day everyone is fine and the next they're breaking the law. Kind of like people who can't use their own legal name because it's the same as some celebrity.

[MissMary]

Well, to me, I'm on the fence here. Sure, trademarked 'Strawberries N Cream' is a bit over the top, BUT when it's a unique name to something, you are technically just taking someone else's intellectual property rights and eventually crossing over trademark.

Yes, I do use the word 'Type' to sell some scents, because it's legal, and I'm working on renaming but mentioning the scent still, because I can't take Juniper Breeze, call it Juniper Trees and people know what I'm talking about - the way they can when they hear the word Sweet Pea, or Chocolate.

I mean, everyone from the little guys like us to corporations like... well, them big guys has a right to be protected. If you protect yourself, you do have a legal leg to stand on.

BTW, jaybyrd, if your legal birth name matches a celebrity, you can use it all you want. You cannot trademark a name, however you can be charged with using a celebrity name status for false advertising. It's not so much the name as to how it's used and how it pertains to that person. I can't walk down to the office say... "Hmm, I think I'll rename myself to Angelina Jolie and start a sushi bar." and have legal grounds, but if I was born with that name, it's my right to use as I please, as long as you aren't deceptive about who you are.

[beck180]

I agree with this idea wholeheartedly.

It seems like almost all of the fragrance oils available to smaller businesses are ripoffs of some larger company. Why not demand a little creativity from the suppliers?

This is reason 1001 why I don't use fo's.

What is it that you use??? EO ? Do you blend your own?

Just curious, If I could find another way that worked I would.

[beck180]

Right! I do understand protecting your assets, especially when you have a wonderful creative idea that you want to trademark, that's great. But it's the common name thing I have a problem with, or a phrase that is used in common language and has been for years before someone has put a mark on it!

What's to stop waelthy corprations from gathering names they want, and laying down the cash to own the rights to that word or phrase? It's actually already happenning on the internet now...Though a bit differently, but it is the same type of crap! How often do search for a domain, just to find out it's already taken, more often than not many of those domains are just parked by the scammers trying to make a buck off them. Sure you can get your domain alot of times, but for a pretty penny!

This is what I'm saying it has to stop somewhere.

[sweetiepie]

What's to stop waelthy corprations from gathering names they want, and laying down the cash to own the rights to that word or phrase?

The Trademark office isn't run by complete idiots. If you look closely, a huge number of applied trademarks never get final registration. This won't keep companies from using the symbol, just the ®

If someone applies for a registered mark for a name you already use, it's your responsibility to file a letter of opposition. If you can show prior use, the trademark office will not grant the ®. This is why all marks must be published for opposition.

To answer your question, I use eo's exclusively and do all my own blending. For me, coming up with original names is just an extension of creating the blends. I love the creative aspects. I could never be happy using someone else's scents or someone else's names.

This thread reminds me...I need to check TESS for a couple of new names I've been pondering.

[Judy, USMC]

So ... True or False. Does Y'kee hold the trademark on the word "Tart" when it refers to a wickless lump of wax? How many small sellers put "tart" on their label? How many people ask for "tarts"?

So now we have to go for alternative terms: melts, melties, shots, and snappers in the clamshells. So I could go and copyright all of them right now and hire a lawyer to send the cease and desist letters?

When I started selling for profit, I pasted my labels for my jars and "snappers" on 4 pieces of paper which I dated and signed. I then proceeded to mail 1 of each duplicate sheet in 4 separate envelopes - to myself. That way if it does become subject of litigation I can prove (by the cancellation date on the UNOPENED and in my safe envelopes) that I was using it before it was copyrighted.

Maybe a false sense of security - but it makes me feel better!

[MissMary]

Judy, unfortunately, that is a false sense of security.

An envelope plainly mailed holds no weight, but if you send a certified letter to yourself, or to a loved one to give back to you, where there's actual tracking involved, THEN it has a better chance of standing up in court.

The reason a plain envelope holds no weight is because of technology, anyone can throw some ink and it and 'prove' it. Certified letter records are kept on file, so they can see the date someone signed for it.

HTH, not trying to be cynical, but help get a bit more protection!

[sweetiepie]

Your first question:

Word Mark TARTS Goods and Services IC 004. US 015 040. G & S: fragrant wax for use in potpourri burners. FIRST USE: 19880630. FIRST USE IN COMMERCE: 19880630 Mark Drawing Code (1) TYPED DRAWING Design Search Code

Serial Number 74224203 Filing Date November 22, 1991 Current Filing Basis 1A Original Filing Basis 1A Published for Opposition August 4, 1992 Registration Number 1726934 International Registration Number 0851491 Registration Date October 27, 1992 Owner (REGISTRANT) YANKEE CANDLE COMPANY, INC., THE CORPORATION MASSACHUSETTS 16 Yankee Candle Company, Inc. South Deerfield MASSACHUSETTS 013730110 Assignment Recorded ASSIGNMENT RECORDED Attorney of Record JAMES A. PERLEY, JR. Type of Mark TRADEMARK Register PRINCIPAL Affidavit Text SECT 15. SECT 8 (6-YR). SECTION 8(10-YR) 20020716. Renewal 1ST RENEWAL 20020716 Live/Dead Indicator LIVE

To get this mark they had to prove that they were first in trade with the word. They started using it IN TRADE in 1988. No one came forward with proof of use IN TRADE prior to 1988 so the mark was granted.

Why do people ask for tarts by name? Because Yankee has spent thousands of dollars developing and marketing the product and name. To me, that makes it WRONG for other people to want to use the same word and profit from the original company's design and marketing. It's just unethical and illegal (civil not criminal). The excuse that "everyone's doing it" just doesn't fly.

Now, you asked about you copyrighting any word such as "melts, melties, shots, and snappers in the clamshells". Since you can't copyright names, I'm going to assume you meant trademarking.

If you can prove that you were first IN TRADE with these terms and want to fork out the money, sure. Have at it. I seriously doubt your claim will hold up to the TM office's research. BTW, no money or paperwork is needed to claim a TM. It's only if you want a legally binding REGISTERED TM that you need to go through all of these steps. I wouldn't send out any C&D letters just yet. Some of the smarter business people out in the real world will make you put your money where your mouth is and demand you back up your claim with proof of mark ownership.

Now, as for your "poor man's copyright", sorry it won't help you much as far as trademarks go. If someone tries to copy your label design, it will come in handy. I'd hang on to them though. You might be able to use them to prove prior use IN TRADE if any of your names are called into question.

Actually, getting your products (with tm's by your original names) up on a website is the best protection you can get next to filing for a registered trademark. However, a trademark (registered or otherwise) is only as effective as you are prepared to defend it.

Really, there is no excuse for not doing your homework when it comes to business matters...especially legal matters.

It doesn't take a lot of time to run a potential name through TESS. Even if it pops up, all is not lost. Is the mark live or dead? Was the mark filed in the same category you were hoping to use it in? Finally, is the mark even registered? If it only shows a serial number and not a registration number, there is still hope. Check to see what date they listed for when they started using the mark IN TRADE. If you can prove you were using it first, send in a letter of opposition. If you haven't used the mark yet, just backburner the idea for a while...the original filer still may not be granted a registered mark. This can happen when the TM office's researchers turn up too many other businesses using the same mark on the same product. Once again, this is more evidence as to why it's a good idea to get your products out there in the market place, especially the WWW.

Isn't it easier to just come up with something creative?

[beck180]

Basically what it boils down to is...if you don't have the cash your just out of luck, to put it nicely! So... the only thing that really protects anything is the cash...and the only ones who can afford to protect or aquire anything, are those who have the cash...I should have known.

[sweetiepie]

Basically what it boils down to is...if you don't have the cash your just out of luck, to put it nicely! So... the only thing that really protects anything is the cash...and the only ones who can afford to protect or aquire anything, are those who have the cash...I should have known.

I guess that's one rather depressing way of looking at it

I disagree. I think the only people out of luck are those who lack creativity and ambition.

Here's a comment by Patti Flynn (Bandicoot on The Dish) that I saved because she really hit the nail on the head.

soap is like anything else: to make consistent good profits, you need to make a consistent good effort, shove in loads of energy and reinvest cash continually and be committed.

here is the magic formula: be creative, work hard, have biz-smarts, be lucky.

if any of those is missing, it just won't work.

as for the luck part, you know what they say:

the harder i work, the luckier i get.

That's how you go from a wannabe to a gonnabe!

[beck180]

What's to stop another larger company with more money from coming along and taking your idea, no matter how creative it is? If you don't have the money to protect yourself, your in trouble.

[sweetiepie]

What's to stop another larger company with more money from coming along and taking your idea, no matter how creative it is? If you don't have the money to protect yourself, your in trouble.

Ya know what? Do what you want. I'm through with this thread.

[MissMary]

Ya know what? Do what you want. I'm through with this thread.

Wow, didn't really read beck's comment as that bad.

Beck is essentially correct. If a corporation wants to take your stuff and you either just got it in practice or have been saving to TM it, they'll come along and throw so much money to discredit you, you'll either A) run out of money to defend yourself, or they'll discredit your evidence.

BTW, putting it up on a website is NOT the next to best thing. It's actually quite the worst thing. There is no proof when you edit your page to include the TM part, and dates can be manipulated too easy. Secondly, hosts are not required to keep your changes or what info passed through for more than the last 2-3 backups of the site (and even then, it's a courtesy, not a forced issue, smaller ones don't do it at all). So if they backup weekly, they only need to keep the last 2-3 weeks worth of information. So you could claim it was on there for 5 years, but there's no proof of it, and by the time you get word anyways, that someone is gonna toss out a C&D that time frame is quite long past.

Putting it on a website could deter someone from using it, but if they are determined and see a gold mine, it won't stop them.

Certified letter IS however the safest way to do it, as I mentioned. That information can be tracked to the day and the hour that it was registered for many, many years. There's a reason why lawyers and courts use certified mail for a ton of issues, ranging from adoption papers and resolution of parental rights, down to divorce notifications and settlements.

ETA: Just had a thought, since Yankee is so big and it's obviously been in use since 1988, is it possible that maybe they used tarts and it caught on as that was what to call them, and so we just do now?

Circa 1988 convo:

"What are those you just bought?"

"Oh they are tarts from Yankee."

Later in the week:

"Hey, my friend just bought these things called tarts, do you know how to make them?"

"Yeah, I can."

Later that month, the friend tells 10 other people about tarts and so on and so on....

[jaybyrd]

Just to display my ignorance, as I've never had reason to seriously research the subject- do the powers-that-be take into account the nature of the product being named? After all, a tart is a bakery item that was in existence many generations before Yankee ever came on the scene, so it would seem only natural to use the term.

[MissMary]

Yes. The wording in the tart TM that was listed, is for fragrant wax burned in potpourri burners.

If you make a toy and call it a tart, then it's different.

[Shisha]

Regarding fragrances, the name and the exact formula are the only things that can be trademarked. The actual smell cannot be. So you can come up with your own formula, that may smell exactly the same, and you're still doing fine. When you give it a name you must use something that shows it's not the trademarked original. (Using "type" after the name will work in most instances.) Most manufacturers do not publish the formula so you can rarely duplicate it exactly unless you use complex analysis technology, which is legal.