Copyright & Patents/Business name and copyright...
Hi I'm from Australia...but I thought it would be good to see how this works.
I had this awesome idea for my business name, let's say I sell locally caught octopus wholesale to the restaurant industry and my idea for a company name is "Squid Pro Quo".
Now, thinking this is a clever business name, the first thing I do is go to Google to see if anybody else has already taken it...
The problem I face whenever something like this happens is that any clever play on words or similar, even though it was completely your own idea, there's usually one of the 6 billion other people on the planet who have already thought of it.
The particular case I'm facing at the moment, to continue with the "Squid Pro Quo" example, is that while it certainly seems nobody in Australia is using that as a business name, there is a fisherman in the US who has a website that goes by this name, and he is obviously running a fishing business.
It seems unclear whether this is an actual business name or just the name of his website/blog however. Would I be liable to face any repercussions if I named my business this and even ended up having a similar website with a similar name? (since we're in the same industry).
This would be good to know :)
This is an excellent question. It raises a number of legal issues.
A domain name is different than a trademark. Generally, there are ways to register variations of a domain name, with hyphens, or a different ending, that will enable you to use the same name, if you want to.
Trademark rights are territorial. This fisherman may have a state trademark registration. In the U.S., if a business wants to engage in "interstate commerce", that is, more than one state, the business should register with the U.S. Trademark Office. There is no such registration or application pending.
There are common law rights to trademarks. Even absent a registration, if someone has been using a trademark on his goods and marks the goods with a "TM", the owner may have legal rights that can be asserted.
There are international search services available that can assist in determining the availability of trademarks.
If someone has pre-existing legal rights to a trademark, that does not mean that the person owns rights to the marks for everything. There are 34 classes for trademark registrations and 11 service mark classes. See http://www.state.nj.us/treasury/revenue/dcr/pdforms/classcat.pdf
Prior to any trademark application, the applicant must first use the mark on the goods or services. For example, "Powerhouse" owns their trademark for fitness centers in most first world countries, but may not own registrations for health food, or sports wear.
Accordingly, just because someone may be using the name, this does not mean that they are using the mark in the same class that you have an interest. A due diligence is required.
Also, you are well-advised to research any mark that you want to use prior to investing significant resources in your business venture. It would be tragic to launch a business and be successful for several years only to have to change names after the you have established good will in the name.
You are strongly advised to engage counsel to assist you in your due diligence.
Clancy, I hope that this helps and good luck!
Gerald R. Black
Attorney and Counselor