I recently started a web based show that got on a network, but am planning on expanding into creating T-shirts, and other trinkets for the TV show. Do I need to trademark the name of the show or register it as a business. And if business, do I go the for profit or non-profit route?
Thanks in advance!
You will have to trademark your products according to specific categories or classes. If you wish the trademark to cover more than one specific product and the product falls into more than one class, you will have to file a trademark for multiple classes. An additional $325 fee (electronic filing) will apply for each class. You can register the title of the show as a trademark and your T-shirt logo or phrase (i.e, class 25; class 42) after a comprehensive state, federal, and common law search has been conducted to determine if the name is protected. You should hire a trademark or IP attorney to determine if your mark is registrable. In addition, you should hire a business and/or IP lawyer to determine what business structure is the most appropriate for your situation. Sole proprietorship, LLC, S-Corporation, etc.)
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Both -- You need to come up with a "trade name" to brand a for-profit company [corporation, LLC or partnership] that you will create and then you need to use that name as a trademark to brand all the related merchandise you want to sell. Your own trademark attorney must "clear the rights" to the trade name so you don't inadvertently infringe someone else's already-existing trade name or trademark rights. Speak with a New York-licensed intellectual property attorney. Good luck.
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.
You should have an experienced Trademark counsel clear the name of the show and the trademark for the T-shirts and novelties. You should have trademark counsel assist you in filing for federal registration of these marks, if they have been cleared. As far as the business, you should ask your attorney regarding the purpose of the business and your goals in order to decide if it should be profit or non-profit and register it, accordingly.
You sound like you are using the name across several classes of goods and services and yes you should be paying careful consideration to the mark before you invest too heavily in it.
Your trademark will be one of if not the most important and valuable business assets you will have and you will ultimately spend more money in support if it than you will anywhere else (advertising, marketing, PR, branding, packaging, etc.). So you owe it to your business and yourself to make sure you handle this properly upfront and the first order of business always starts with a proper and comprehensive clearance.
Whenever you endeavor into investing in a trademark it is very important that you conduct the proper clearance due diligence upfront and before you start spending any money in support of it or submit an application to the USPTO. In the US, this means searching under both federal (USPTO) as well as common law because trademark rights stem from use in this country NOT registration. This means that acquiring a federal registration does not necessarily mean that you are not infringing on another's intellectual property. See the link below for a brief article from Fox Business News on the importance of the due diligence process and our overview guide.
I suggest that you consult with a lawyer in private and discuss your objectives in more detail. You can start by calling around to several for a free phone consultation, get some insights then pick the best fit to work with.
DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed with the law firm of Natoli-Lapin, LLC on the basis of this posting.
Many people make the mistake of registering a business and then believing that because they were allowed to register the business name, they are not infringing anyone else's trademark. Business names are registered if they are not identical to something else that is registered in that state. Federal trademark registrations, trademark registrations in other states, and common law trademarks are not searched. Furthermore, the standard for trademark infringement is likelihood of confusion. A proper trademark clearance search, which is strongly recommended by most or all trademark attorneys prior to beginning use of a trademark, can prevent receiving a cease and desist letter after investing thousands of dollars in marketing based on your chosen name. If the search results are positive, federal trademark registration will generally provide the best protection for your rights to the trademark, although reasons to register the trademark at the state level sometimes exist.
Registration of the business is a completely separate issue. You certainly want to do business as some type of entity that separates your business and personal assets and liabilities, and this always involves some form of business registration. There is simply not enough information in the question to determine whether your needs are best served by an LLC, LLP, some type of corporation, nonprofit, etc. You should discuss your specific goals with a business attorney in private. Be aware that operating as a nonprofit requires giving up control to a board of trustees, as well as other limitations on what the business can do.
You have got good answers here. Make sure that your business name and the brand name of you company are both "clear" in trademark parlance and register the trademark federally. Hire a decent TM lawyer and you will not (should not) have problems we often hear about on this site from people who ask too late.
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