Hello!
Welcome Back.
As I have previously stated, many of the clients I obtain are those who have tried to register their trademarks without the assistance of an attorney and the USPTO rejects their application. Consequently, I have started this series appropriately titled "Why I Should Hire a Trademark Lawyer" to address common questions or pitfalls many trademark owners commit when attempting to navigate the USPTO on their own. Today, I am going to discuss in depth the number one pitfall:
1. Not obtaining or performing an adequate trademark search.
A simple search on Google to determine whether a trademark name, logos, or taglines are in use by another party, simply will not do. If I submitted a trademark application to the USPTO, based on a Google Search, I would be sued for malpractice. This is a big big public misconception. There are thousands of viable trademark claims or rights that simply do not show up in a Google Search. Why?
a. Some businesses do not own a website,
b. Some business are operating under DBAs that search engines may not find,
c. Some businesses, do not do any active advertising or marketing
However, this list is not exhaustive. There are so many mom and pops that fall under this category. You would not know if they existed unless you hired an attorney or a search company to do a comprehensive trademark search.
Another misconception is that if a search is performed using the USPTO's trademark database, and the name is not taken, you are in the clear. WRONG. WRONG. WRONG. The USPTO's database only includes registered trademarks, not common law trademarks. A common law trademark right exists when one is the first to use the mark in their region, regardless of whether the mark has been registered with the USPTO.
Once the USPTO receives your trademark application, they will perform a comprehensive search and if your trademark is already in use, your application will be rejected. In addition, you will have to possibly choose another trademark name, logo, and/or tag line.
So before deciding to file a trademark application, consult with an attorney regarding a comprehensive search. It will save you time, headaches, and money.
In my next post, I will give an detailed example on what a comprehensive search includes.
Wednesday, April 29, 2009
Monday, April 6, 2009
New Federal Trade Commission Proposed Rules on Blogger Product Endorsements: What brands and bloggers need to know
Hello!
Welcome Back! The Federal Trade Commission recently released proposed changes to their Consumer Product Testimonial and Endorsement Rules. They are:
An advertisement containing a consumer endorsement about the performance of an advertised product or service must reflect the actual performance of the product or service. Essentially the advertiser must have sufficient evidence, if applicable, competent and scientific evidence, to verify that the consumer endorsement is correct. Sec. 255.2(a)
In addition, the consumer endorsement must be representative of the results consumers would generally achieve. The endorsement can not be an atypical result. Advertisers must also have sufficient evidence to support general results.
These proposed changes do not apply to highly subjective testimonials for certain products such as movies, games, or restaurants. But if the advertiser is paying the consumer endorser to endorse the product, then the above rules do apply.
Most importantly, if an advertiser is paying a consumer to endorse a product with cash or free products, then the advertiser and the consumer must disclose the financial relationship. If not, both advertiser and consumer may be held liable for making false statements.
HOW DOES THESE RULES AFFECT BLOGGERS AND ADVERTISERS IN NEW MEDIA?
In the new proposed rules, The Federal Trade Commission also addressed advertising in new media (Web 2.0). Essentially, if an advertiser pays a blogger to write a review endorsing a product or service, the advertiser and the blogger must disclose the financial relationship. In addition, both blogger and advertiser both will be liable for any false or unsubstantiated claims regarding results of products or services.
WHAT CAN ADVERTISERS AND BLOGGERS DO TO AVOID LIABILITY?
1. When using bloggers to endorse product or services, advertisers should make certain that their products do what they claim. Advertisers should extensively test products, run trials, and document evidence that substantiate results for most users of the product or service.
2. Advertisers should provide data to bloggers that evidence typical results for most individuals. Advertisers should stress to bloggers that if the product does not produce the desired results as documented, do not write a favorable review.
3. Advertiser should include disclaimers on consumer endorsements that state that results are typical of most individuals using the products. However, if a consumer achieves an unfavorable result, it is atypical and may be based on a variety of personal factors unknown to the advertisers.
4. When writing a favorable review or endorsement of a product, bloggers should always disclose they received the product for free or was paid to write the review.
5. Bloggers should always give their true opinion of the product whether paid or not.
6. Bloggers should post any product disclaimers and company trials or evidence substantiating their review of the product.
Although the proposed rules have yet to be adopted, I think the above tips are great practices for advertisers and bloggers. The Commission may not adopt all of the rules, but considering the explosion of new media, regulation is inevitable.
I welcome your thoughts!
Welcome Back! The Federal Trade Commission recently released proposed changes to their Consumer Product Testimonial and Endorsement Rules. They are:
An advertisement containing a consumer endorsement about the performance of an advertised product or service must reflect the actual performance of the product or service. Essentially the advertiser must have sufficient evidence, if applicable, competent and scientific evidence, to verify that the consumer endorsement is correct. Sec. 255.2(a)
In addition, the consumer endorsement must be representative of the results consumers would generally achieve. The endorsement can not be an atypical result. Advertisers must also have sufficient evidence to support general results.
These proposed changes do not apply to highly subjective testimonials for certain products such as movies, games, or restaurants. But if the advertiser is paying the consumer endorser to endorse the product, then the above rules do apply.
Most importantly, if an advertiser is paying a consumer to endorse a product with cash or free products, then the advertiser and the consumer must disclose the financial relationship. If not, both advertiser and consumer may be held liable for making false statements.
HOW DOES THESE RULES AFFECT BLOGGERS AND ADVERTISERS IN NEW MEDIA?
In the new proposed rules, The Federal Trade Commission also addressed advertising in new media (Web 2.0). Essentially, if an advertiser pays a blogger to write a review endorsing a product or service, the advertiser and the blogger must disclose the financial relationship. In addition, both blogger and advertiser both will be liable for any false or unsubstantiated claims regarding results of products or services.
WHAT CAN ADVERTISERS AND BLOGGERS DO TO AVOID LIABILITY?
1. When using bloggers to endorse product or services, advertisers should make certain that their products do what they claim. Advertisers should extensively test products, run trials, and document evidence that substantiate results for most users of the product or service.
2. Advertisers should provide data to bloggers that evidence typical results for most individuals. Advertisers should stress to bloggers that if the product does not produce the desired results as documented, do not write a favorable review.
3. Advertiser should include disclaimers on consumer endorsements that state that results are typical of most individuals using the products. However, if a consumer achieves an unfavorable result, it is atypical and may be based on a variety of personal factors unknown to the advertisers.
4. When writing a favorable review or endorsement of a product, bloggers should always disclose they received the product for free or was paid to write the review.
5. Bloggers should always give their true opinion of the product whether paid or not.
6. Bloggers should post any product disclaimers and company trials or evidence substantiating their review of the product.
Although the proposed rules have yet to be adopted, I think the above tips are great practices for advertisers and bloggers. The Commission may not adopt all of the rules, but considering the explosion of new media, regulation is inevitable.
I welcome your thoughts!
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