Expert: Shannon Moore - 7/14/2008

Question
I have started a clothing line. And wanted to use a Ralph Emerson Quote as the motto for the company.  I have been unable to verify where the quote has been trademarked? How would I go about searching this? Also, if it has been trademarked, I would need permission to use it on clothing correct?

Answer
Dear Jason,

You've got copyright & trademark issues here; I'll explain both one at a time.

Copyrights:

For works first published prior to 1978, the term will vary depending on several factors. To determine the length of copyright protection for a particular work, consult chapter 3 of the Copyright Act (title 17 of the United States Code).

Link to chapter 3: http://www.copyright.gov/title17/92chap3.html

You may also be dealing with a fair use issue as well:

How much of someone else's work can I use without getting permission?
Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See FL 102, Fair Use, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians.

Link to Fair Use Flyer: http://www.copyright.gov/fls/fl102.html

Trademarks:

Here are some links where you can do some preliminary checking. However, please be aware that this is merely scratching the surface of what's out there.

http://tess2.uspto.gov/bin/gate.exe?f=tess&state=tbmkb6.1.1  -- USPTO – Preliminary Search of Federal trademarks
http://biztaxlaw.about.com/od/research/a/Sec_of_state.htm --Go to your state's Secretary of State page to see if they have a searchable database of business names
http://www.hoovers.com/free/
http://www.thomasnet.com – Must register (free) to search their database

Only comprehensive research will tell you if the name is truly available. But, these links are free & a great place to start, so I'd try them out first.

Comprehensive research consists of looking at marks that are similar in Sound, Appearance or Meaning in the pending & registered Federal AND State trademark files as well as the US National Common-Law files.

There are other sites that offer free searching capabilities in conjunction with their commercial services, so I'm not able to post those links due to the Yahoo! TOS. You'll also want to check domain names & yellow pages, so simply do a search for "free domain name search" and "national yellowpages" and the appropriate links will pop up.

Hope that helps! I wish you much success & happiness in all your ventures!

Warmest regards,
Shannon Moore
http://www.tmexpress.com