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Author Topic: Creating & Protecting Artist Trademark  (Read 830 times)

spoo46

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Creating & Protecting Artist Trademark
« on: 12-12-16 at 09:33 pm »

Hi there, first time here and trying to start up my art business. After some research I developed a name for my (primarily) online presence as an artist. I searched in the trademarks database and have not found any with similar names to mine that are selling the same products. There is a music venue and a Pub in Europe with the same name that I found on Facebook, however I do t-shirt designs, paintings and some jewelry making etc. and I don’t think the 2 are likely to be confused. I searched on Facebook and didn’t find the name taken anywhere in the same way that I intend to use it. So I launched my Facebook page and I’ve been using that name on a couple outside sites in which I am selling products as well. Since then I did another search in Facebook and have found that someone else is using the same name, selling the same type of product (jewelry) in another state. Their Facebook page requests that buyers message them directly for an online sale. They are small on Facebook with only a few page likes, it appears they also have an Instagram as there is a lot of hashtagging.

I’m looking into getting a trademark and will be getting a domain name soon as well. Before I get ahead of myself though I am hoping for some advice about the name, and if it seems like it would be too general. I’m afraid I may run into the issue of other people having a similar name fairly often as the 2 words in the name are relatively common, but not always used together. My thought is to get a domain name and apply for the trademark and then message this other seller on Facebook and let them know that I have the rights to the name.

Let’s say the name is something like “Moon Dog” Would this name be too general to trademark?
Also let’s say someone wants to make “Moon Dog Creations” and sell similar products, would my trademark of “Moon Dog” be enough to protect my business?

I spent a long time coming up with a name that I felt represented me and my art. I really want to keep it as is without having to add “Art” or “Designs” etc. to the end of it. I am mostly writing to get insight on whether or not I can have this name and actually PROTECT it easily. Is simply having a trademark and shoving it in the face of anyone thinking of using the same name for the same goods powerful enough to keep me from massive costs and headaches in the future? I'm a one person machine at the moment.

Also the .com I wanted is for available but the price has been jacked up to almost 2K.

Sorry for the novel. Any help is greatly appreciated! Thanks in advance.
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artchain

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Re: Creating & Protecting Artist Trademark
« Reply #1 on: 12-12-16 at 10:40 pm »

It's OK to use common words in a trademark, provided they are not descriptive. Purely descriptive terms generally can't be registered.

For example, if you make pottery bowls, "Pink Umbrella" would be perfectly good trademark, but "Deep Bowl" would not.

The next question would be ownership of the mark.  You said that you and another person are both using the mark to identify similar goods.  Ownership of the mark is not determined by "who registers first," but rather by "first use in commerce."  So if the other party started offering their goods for sale before you did, then they own the rights to the mark, and could dispute your registration.

spoo46

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Re: Creating & Protecting Artist Trademark
« Reply #2 on: 12-12-16 at 11:29 pm »

Thank you for your reply. From my search on the uspto.gov trademark database this person does not have a trademark registered with that name. That is why I want to apply for a trademark of my business name and take ownership of it. I had a Facebook artist page and have been selling on FB before they made an account on FB( I know because I checked before I made my page). That's why I am trying to claim ownership of it right away. They seem very small and perhaps just starting up..

How can I find out/prove who was selling first with that name if neither of us have registered trademarks?

Is there somewhere else I should be searching for existing trademarks, or trademarks that are pending besides TESS on uspto?

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artchain

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Re: Creating & Protecting Artist Trademark
« Reply #3 on: 12-13-16 at 12:26 pm »

Just to be clear, trademark rights are established through use of the trademark in commerce.  Registration is not required, but does give you some additional protections:

https://www.uspto.gov/trademarks/basics/register.jsp

Honestly, you can never know for certain that someone else wasn't using the mark before you, but you can be fairly confident if you conduct searches of the USPTO database, the web, FaceBook, etc, as you have done.

You can also find out precisely when the other person's FaceBook page was created:

http://smallbusiness.chron.com/start-date-facebook-59451.html

spoo46

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Re: Creating & Protecting Artist Trademark
« Reply #4 on: 12-15-16 at 02:55 pm »

Thank you so much. I went back to search further to see if I could find out exactly when this person started selling with the mark. It looks like they started posting items for sale in November. I have been using the mark since October, a month before them. So technically that would make me the owner of the mark.

If I apply to have my mark registered, is it a possibility it will get denied simply because there is someone else using the same mark? Will the USPTO research and understand that I was first to use the mark?

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artchain

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Re: Creating & Protecting Artist Trademark
« Reply #5 on: 12-15-16 at 06:32 pm »

As part of the registration process, the proposed trademark will be posted for public review.  There is a possibility for someone else to challenge the mark if they can provide evidence of prior use.  With most small business marks this does not happen, because the other party isn't following pending trademarks.

At some point in the future, if you become big enough for them to notice (or when you get your registration and tell them to stop using the name), they may choose to oppose you in court if they feel they have a prior claim...  but once you have the registration, it's more costly and difficult for them to overturn it.

spoo46

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Re: Creating & Protecting Artist Trademark
« Reply #6 on: 12-18-16 at 03:55 pm »

You've been very helpful, thank you!
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