Well, as an individual doing business, there is nothing to prevent you from taking things into your own hands and filing and seeking to prosecute one or more federal trademark applications, as well as doing other pertinent registrations. There is a lot of information available without cost, if you know where to look and want to spend your time searching for it. So all you'd "need" to do is to learn the ropes and hope you get it right.
Yes, just learning to search the various sources of trademark information is a serious task, particularly because in the U.S., federal trademark rights exist concurrently with trademark law as applied in the various states, the latter including not only registrations but also rights that develop pursuant to principles of common law through actual usage.
Alternatively, you could choose to engage an attorney who's experienced in trademarks and working with business startups, whose job will include helping you avoid pitfalls that the uninitiated sometimes fall into. It's up to you to decide how to invest your limited startup funds. But you get by with a little help from your friends, and one trusted advisor should be such an attorney.
This posting is intended for general education and isn't "legal advice." It doesn't create or evidence an attorney-client relationship. You are encouraged to engage an attorney in the pertinent jurisdiction for confidential legal advice on matters of any importance. -Gerry J. Elman, J.D. Elman Technology Law, P.C. Swarthmore, PA www.elman.com
The law permits you to create, adopt and register a business name and trademark all without any assistance from an intellectual property attorney. But doing so is very unwise.
The above response is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.
Are You Planning on Opening a New E-Commerce Website?
There is much you need to know as you begin your new business. I suggest you do not attempt to write your own legal policies. This is not where your training and background lie, and though you are probably as smart as an attorney, you do not have their experience.
Below is a checklist for legal issues I use for new e-commerce clients.
1. Business Model – Is your idea viable as a web based business?
2. Business entity - Are you going to be a C corp, an LLC or a sole proprietorship?
3. Terms of Service - This is your contract with your visitors and is the most important item for any e-commerce site. A little work here brings big dividends in the future.
5. FTC guidlines - The FTC has been regulating business advertising for almost a century. All of their advertising guidlines apply to e-commerce sites.
6. Domain Name issues? Is your name available. Can you create a Trademark?
7. Trademark - Do you have a brand name free from conflict? Should you start with just common law rights? Should you register the mark, and when?
8. Copyright - If it is on the web, it already belongs to somebody. Did you buy a license for the images you are using? Do you have a DMCA notice on your web site?
9. Do you need a DMCA policy?
10. Web Site security issues?
11. Do you need and have an EIN? You can get that for free.
12. Do you have employees? - If so you need written policies regarding their authority and use of the internet.
13. Do you know the difference between a "browser wrap" and a "click wrap" and which do you need?
When I discuss this list with clients other issues arise. Finally, I always discuss with my clients their need for good accounting services. An accountant's advice as you start up can save you many dollars in tax that you might not save if you wait to speak to an accountant until your first tax return is due.
I hope this list will give you pause to think about those issues for which you might need to seek professional advice.
You may want to discuss your situation with a lawyer in more detail. Most lawyers on Avvo, including myself, offer a free phone consultation.
Andrew M. Jaffe
Attorney at Law
Practice Limited to E-Commerce and Internet Law
This post is provided for general informational purposes only and is not intended to be legal advice specific to you. This general information is not a substitute for the advice of an attorney in your jurisdiction. The attorney client relationship is not established by this post.
No, you do not need an attorney to register your business or trademark. The USPTO has an excellent online process and help menu. However, protecting your brand name is no something to fool around with and, as you point out, you do not want to be blindsided later on. Going with a knowledgeable attorney who can do the job cost efficiently is recommended.
This is not a legal opinion, and should not be relied upon as such. Contact MARTIN APC at 510-444-7600 with any questions regarding this post.
Your brand will be an important asset for your business's success and growth and therefore your decision to protect it early on, is smart on your part. Many businesses fail to see the importance in their intellectual properties until it is too late/complicated and quite costly. You can take proactive and cost-effective measures now to set a solid foundation to avoid any complicated legal issues in the future and protect your brand.
Although, you can go at it without the assistance of an attorney, it is always best/ wise to seek the advice and assistance of a business/intellectual property attorney for these types of matters. A CA seller's permit does not offer Intellectual Property protection for one's brand. If you are not currently represented by an attorney and wish to discuss this matter, you can reach me at (424) 270-0061 or at firstname.lastname@example.org for a free consultation. Thank you,
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