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[jason1082]

Not fully certain if this is more appropriate for the copyright forum, but I’m posting this here as I think this is the right place.  I have been hosting a website podcast for some time now and have established a nickname for myself, as opposed to using my real name.  It’s become my “character”, if you will.  In fact, it’s even part of the show title.  As it continues to grow, and I have even reserved a website domain for the name (the show is currently hosted on a different site), I wanted to see if there is anything I can or should be doing to make certain the name is protected and cannot be used by someone else.  I’m fairly sure it’s not already trademarked (though I cannot be 100% sure), so is this the way to go or is it something that is not even worth worrying about?  And if so, what sort of cost might be involved in “trademarking” such a name for myself?

This is all new to me, so any help would be appreciated.

-Jason

[Zonath]

Trademark typically only applies to marks which have been used in commerce.  So I guess the first question you would have would be whether or not your mark even qualifies, since you may not have been using it in 'commerce'.  Do you sell your podcasts?  Do you receive any revenue stemming from your use of the mark?

Assuming you can find something that's a use in commerce, your next step would probably be to conduct a search, not only of the mark itself, and not only of registered marks, but for any use of any mark which could potentially be found to be confusingly similar.  If you find a registered mark which would probably be confusingly similar, you can probably expect a denial of your registration, and if you find an unregistered mark which would probably be confusingly similar, you might expect an opposition to your registration, or possibly that your prospective right to use the mark would be somewhat limited.

Finally, assuming that everything looks good, you would file to register the mark with the USPTO.  I believe the paper registration fee is $375 per mark per class of goods (electronic filings get a discount, as well).  Since it sounds like you only have one mark right now, and one class of goods or services, you'd probably be looking at just paying that $375 if you did this yourself and everything went smoothly.  Assuming you do this all yourself, you won't have legal fees to deal with.  Of course, you may want a lawyer helping you, so figure in those costs as well.

Of course, even absent a registration, if you've been using your mark in commerce and it doesn't infringe upon anyone else's mark, you have a valid trademark and have some rights to protect that mark, even if registration provides a bit more protection.

Also, you might look into the concept of 'personality rights' or 'publicity rights', since it sounds like even if you haven't been using your nickname in commerce, you might still have enough wrapped up into your nickname to have some right to keep others from using it.

[JSonnabend]

Trademark typically only applies to marks which have been used in commerce.  So I guess the first question you would have would be whether or not your mark even qualifies, since you may not have been using it in 'commerce'.  Do you sell your podcasts?  Do you receive any revenue stemming from your use of the mark?

Assuming you can find something that's a use in commerce, your next step would probably be to conduct a search, not only of the mark itself, and not only of registered marks, but for any use of any mark which could potentially be found to be confusingly similar.  If you find a registered mark which would probably be confusingly similar, you can probably expect a denial of your registration, and if you find an unregistered mark which would probably be confusingly similar, you might expect an opposition to your registration, or possibly that your prospective right to use the mark would be somewhat limited.

Finally, assuming that everything looks good, you would file to register the mark with the USPTO.  I believe the paper registration fee is $375 per mark per class of goods (electronic filings get a discount, as well).  Since it sounds like you only have one mark right now, and one class of goods or services, you'd probably be looking at just paying that $375 if you did this yourself and everything went smoothly.  Assuming you do this all yourself, you won't have legal fees to deal with.  Of course, you may want a lawyer helping you, so figure in those costs as well.

Of course, even absent a registration, if you've been using your mark in commerce and it doesn't infringe upon anyone else's mark, you have a valid trademark and have some rights to protect that mark, even if registration provides a bit more protection.

Also, you might look into the concept of 'personality rights' or 'publicity rights', since it sounds like even if you haven't been using your nickname in commerce, you might still have enough wrapped up into your nickname to have some right to keep others from using it.

Whether or not he receives revenue is not dispositive of anything.  There is absolutely no requirement anywhere in trademark law that revenue be realized for trademark rights to vest. 

As for a real use in commerce (or use as a mark) analysis, the telling line from the OP is "In fact, it’s even part of the show title."  That sounds like a trademark to me.

As for what the goods or services are, the ID would be something along the lines of "Entertainment services, namely, providing podcasts in the field of X" or "Downloadable podcasts in the field of X".

- Jeff

[NJ Patent1]

Jeff:  Can you point me to any authority concerning how "use(d) in interstate 'commerce'" has been interpreted by US fed courts when nothing of value changes hands?   What would the OP say in his/her statemnt of actual use? 

[JSonnabend]

For a cite, start with section 45 of the Act ("sold or transported in interstate commerce").

As for statement of use, what do you mean?  When does one ever say they "sold" or "received value" in a statement of use?

- Jeff