Protecting Your Business: All About Trademarks

Starting a new business venture is an exciting life decision that comes with many considerations; one of these considerations is the choosing of your business name! Soap and cosmetic businesses are popping up at a fast pace, and this means more names and trademarks are being registered each day.

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A trademark is defined as a symbol, term or terms that are legally registered or established by use as a representation of a company or a product. This means your company’s business name, logo, and unique product names can be trademarked-and if they are, using them may be unwise. In this article, we’ll touch on the basics of performing a trademark search and offer non-legal advice on why securing a trademark is an important way to protect your business!

History and Overview 

The first registered trademark was secured by the Averill Chemical Paint Company on August 30th, 1870-it was an eagle with a ribbon and the words, “Economical, Brilliant”. The oldest United States trademark still in use is trademark number 11210, an illustration of the biblical person Samson wrestling a lion, registered in the United States on May 27th, 1884 by J.P. Tolman Company (a rope-making company). Entrepreneurs have been protecting their business names and representations for nearly 150 years, and modern entrepreneurs are no different!

When talking about trademarks, the terms brand, logo and mark are used interchangeably trademark. Trademark also includes (but is not limited to) any brand, name, signature, smell, sound, movement or any combination of these components which separates the products and services of a business from other businesses. Trademarks are considered a form of property, and proprietary rights to the trademark can be established in two ways: either through use in the marketplace, or through the legal registration of the desired mark with the trademark office.

Registering a Trademark 

In the United States, there are a few steps to follow when registering a trademark:

  • An application is filed by the desired trademark’s prospective owner for registration.
  • Several months after filing the application, it is reviewed by an examining attorney at the U.S Patent and Trademark Office. This attorney will check for compliance with the rules of the Trademark Manual of Examination Procedure.
  • If the attorney finds fault with the application, the applicant will be required to address the specific issues or refusals before the mark can be registered.
  • If the attorney approves the application, it will then be “published for opposition”. During this 30-day period, any third parties who feel they might be affected by the registration of the proposed trademark can step forward and file an Opposition Proceeding to stop the registration from moving forward.
  • If no third-party steps forward to oppose the trademark registration, or if the Trademark Trial and Appeal board determines there is no grounds for opposition, the mark will eventually be registered.

Trademark registration can range from $275 to $325 per class and can be applied for online. It is imperative that, while completing all of the requested information for your trademark, you are very accurate. Inaccuracies in your application can result in the cancellation of your application, costing you valuable time and money.

Searching for a Trademark 

Performing a trademark search on your own is an important part of the application process. There are a few things to keep in mind when you begin your search:

  • Go broad within your industry. A trademark owner acquires the rights not just for its specific goods, but also for goods and services it is reasonably likely to offer. Performing a broad search, although time consuming, will help you get a firm handle on the availability of your desired mark.
  • Search for substantially similar names. If you are naming your company “Creative Scents”, for example, you should also do a search for “Kreative Scents” or “Creative Sense”. Similar names should be paid attention to; ignoring them could be costly down the road.
  • If you find that your name is already in use, stop. It is time consuming and a creative headache to find the name you want to use, and it can be very disappointing to find out it’s already taken. However, if you disregard unfavorable search results and decide to use the mark anyway, the consequences could be costly in regards to monetary damages and attorney’s fees.
  • If your search does not reveal anything, don’t stop there. Sometimes, performing a search on your own can be confusing. Especially if you are using a common term or phrase as a logo/company name, consider consulting a trademark attorney who is specialized in searching for registered trademarks on a client’s behalf. This can be costly, but for large businesses who are very successful and very public, this could be a business-saving step in avoiding a disastrous infringement.

Now that we’ve covered a few guidelines for searching, let’s talk about how to search. The U.S Patent and Trademark Office offers a valuable online search engine that is open to the public, called the Trademark Electronic Search System (TESS). TESS is a great tool for home use, but can be a bit confusing for those not versed in legal terminology. Regardless, using this as a first point of reference can save you quite a bit of time and money!

TESS is located on the USPTO website (www.uspto.gov). Once you are on this site, locate a section entitled Search Trademark Database. This will take you to another page with more details on the search process. When you’re ready, click on Search Trademarks under the heading, Trademark Electronic Search System (TESS).

Once you click on Search Trademarks, you’ll be brought to a page with several search options. At the top of this page, you’ll also see a link for TESS TIPS. We recommend taking a look at this page before you continue; it contains a lot of useful information about TESS and the search process.

After you’ve visited the TESS TIPS page, you’re ready to search. You can select any options, but the two that are easiest are Basic Word Mark Search (New User) and Word and/or Design Mark Search (Free Form).

Once you click on your desired method, you’ll be brought to the search screen. To get started, you can enter your desired mark. For the purpose of this article, we’ll be using the sample desired business name Creative Scents.

From here, you can search a few different ways. First, you can input the exact name of your desired mark; this will bring up every mark containing your search words (for example: searching Creative Scents will bring up every mark that contains both “Creative” and “Scents”, in no particular order). However, if you’d like to narrow your search, you can use quotation marks (“) to surround your search terms to find only marks that use the desired phrase. (For example: Creative Scents will yield every mark that contains both Creative and Scents. Searching “Creative Scents” will narrow the search results to include only marks in that exact order). 

Even if your search provides no matching results or similar names, don’t stop there! Now it’s time to look at the big picture. Companies love to come up with different ways of spelling names to be unique in a saturated market. It is very important to do a search for these variations too.

Using an asterisk (*) in your search will help to find trademarks that begin and end with your word. (For example: say you are searching for Creative Scents. Typing “Creative* and *Scents” will result in marks starting with Creative and ending in Scents. By connecting them with the word “and”, you will get Creative Scents as a result, but also results like “Creative Scentsations”.) These search methods will help you to find similar marks. Also, search for vowel and consonant substitutions (like “x” for “c”, “oo” in place of a long “u” sound, etc) to maximize your reach and eliminate the possibility of overlooking a very similar name with only a few letters different. Use the same consideration with numbers; try searching “4” in place of “for”, “2” for “too”, etc. Additionally, search your desired mark with abbreviations like “R” for “are”, or “4U” for “for you”. Searching for alternative name spellings is also very important; if you are attempting to register “Smith Soaps”, check for “Smithe Soaps”. Although it is technically a different name, it can still present a potential infringement.

To make things a bit easier, you can also use the wildcard character “$” in your search. “$” represents one or more optional characters and can be used to find alternative spellings. (For example: searching for $reative* and *Scents will yield both Creative Scents and Kreative Scents.) You can also use “$N” in your search; this can be used to search for a number of letter variations, where N is the limit of letter variables. (For example: Essent$2l would produce both Essential and Escentual.) 

I’ve Searched…Now What? 

Now that you’ve searched TESS, it is also strongly recommended that you perform a basic internet search for your company’s name. Much like your search in TESS, you will want to search in a variety of ways.

To perform an internet search, open Google (or your search engine of choice) and type your company’s name precisely as you’d like it. Then, enter your company’s name with an alternate spelling (if you’d like Creative Scents, type Kreative Sense, Kreative Scents, etc). Even if there is not already a registered trademark for the name, if there is another company using the name already, they can dispute your attempts to both use and trademark the name. Be thorough, and most importantly, take your time. Although searching TESS and search engines can be time-consuming, taking the time initially will save you a potential financial headache later on.

Maintaining Your Trademark 

If you do decide to register your trademark, there are special considerations when it comes to maintaining it. In the United States for example, failure to actively use a trademark for a certain period of time will constitute abandonment of the mark, and then anyone can use it. Abandonment also applies if a mark is registered with a description of a specific type of product or service, and is then used in a different category; if you believe you may span categories, it’s best to register it for each one. Also, if you register a trademark and it becomes generic or commonly used, it may be ruled invalid.

If you register your trademark and continuously use it, in theory, it will last in perpetuity, as long as the trademark owner keeps the mark registered with the USPTO by filing an Affidavit(s) of Continuous Use as well as Applications for renewal, if/when required. You’ll need to file an Affidavit of Continuous Use specifically between the 5th and 6th anniversaries of the registration of the mark or during the 6-month grace period that automatically follows the 6 year anniversary. During this renewal period, you can also choose to file a Declaration of Incontestability; this declaration will protect you by making your mark incontestable (meaning, immune from any future challenges). In the case of filing this declaration, you would still need to actively use the trademark, as it can still be subject to abandonment. You must also be mindful that you have registered it properly; fraudulent trademark registration is not protected under any declaration, and such a registration can cause a revocation of your mark. Additionally, U.S trademark registrations must be renewed on or before every 10-year anniversary.

Final Thoughts 

Trademark law is designed to protect the general public from being misled about either the quality or maker of a good or service offered. Those who register their trademarks are also viewed at a higher standard by consumers, because it is an incentive for business owners to maintain a positive reputation. We’ve given you quite a bit to consider in this article, but if there is one thing you can take away from it, it should be that protecting your business name, your products, and your reputation is tantamount to every other important business decision you will make. After all, if the adage “an ounce of prevention is worth a pound of cure” holds true, doing your due diligence before building your business around a particular name or mark can save you from costly rebranding or litigation down the road; a process that will inevitably cause financial hardship for you and your business, as well as potential damage to your reputation.

Don’t miss out on your opportunity to learn about trademark law at our 2017 Annual Conference! We are fortunate to welcome Robert Lippman, a Principal with the law firm of Lemery Greisler LLC, to our Speaker Lineup for the conference! He will be hosting a session called Protecting Your Business Brand-don’t miss out on this valuable discussion about intellectual property including trademarks, patents, trade secrets, and much more.

Register for the 2017 Conference today by visiting http://www.soapguild.org/cart/conference.php/!

Handcrafted Soap & Cosmetic Packaging (Part 1) – Finding the Best Fit for Your Bar

You’ve made your product; that swirl is just right, the scent; amazing! Now comes the big decision…how are you going to package it?

When it comes to packaging soap and cosmetics, there are many different options on the market. Each has its own benefits and drawbacks, and everyone has opinions on which type is best; we won’t try to decide that in this article. Instead, this two-part series will explore the pros and cons of popular packaging types, beginning with soap! (Keep an eye out for Handcrafted Soap & Cosmetic Packaging (Part II); Bottles, Tubes and Jars….oh, my!).

There are a few ways that you could choose to package your soap bars; boxes, cigar/belly bands, paper, shrink wrap, or naked with a descriptive card. There is no right or wrong way to package, as long as you are in compliance with all labeling requirements.

Adding decorations or embellishments to your packaging can draw the eye-but be sure to adhere to labeling guidelines.

Adding decorations or embellishments to your packaging can draw the eye-but be sure to adhere to labeling guidelines.

Boxes

Pros: Boxes can be made out of cardboard or recycled materials, and are great for those who want an elaborate package that makes a statement. There is generally more room for information on a box, and it can add protection during shipping and handling.

Con: Boxes do not offer much, if any, visibility for your product. If you have a product that is extravagantly swirled or colorful, a box will hide this. Also, pre-printed boxes must be purchased in bulk so the initial dedication of funds can be cumbersome if you are not prepared for it.  If you do use a box, set a sample bar in front of the display of boxes to allow your potential customers to see the product first.

Shrink wrap

Pros: Shrink wrap is a great way to protect your product from the elements while still allowing customers to see what your soap bar looks like/ can show off the way it looks. Shrink wrap will also provide a barrier between your customers hands and the soap before purchasing.

Con: If soaps are not completely cured, the shrink warp will cause them to sweat. If you are using shrink wrap packaging, be aware of your soap’s individual curing time.  Uncured soap will shrink causing your wrap to become loose.  Packaging it too soon may jeopardize the integrity of your product.

This is a great example of simple, yet striking soap packing.

This is a great example of simple, yet striking soap packing.

Cigar/Belly Bands

Pros: This popular method of soap packaging allows for creativity with a printed band and the advantage of space for a logo and proper labeling information. It keeps your soap visible to potential buyers, and also gives them something to hold and smell when they pick it up.

Cons: Bands do not offer any protection to your product. If banded before being properly cured, the soap will shrink causing the band to come loose which is unsightly and inconvenient. Tip: As with shrink wrap packaging, pay special attention to your product’s curing time.

Paper

Pros: Papers provide a secure place to affix a label, and can be bought in a variety of patterns and textures. They provide a barrier between the elements and your soap, and can run the gamut from classy and elegant to rustic and simple.

Con: Packaging your soap this way can be timely, and you will need to find a reliable adhesive to close the package, or a label to affix over where the paper meets.

Naked

Pro: Selling your product without a label may seem risky, but many soapmakers have found a way to keep their product au natural without succumbing to labeling injunctions. By providing a separate card or paper that details what is in the soap specifically, along with contact information, you have the benefit of a naked soap without the perplexing labeling errors. You can choose to customize a card or flier per product, or, if you have a standard recipe, you can make just one card and simply write the name of the specific scent on it upon purchase. This will significantly cut back on packaging time.

Con: This method offers no protection for your product against elements or consumer hands. It may be best to put out a sample for smelling and inspection, while keeping the other naked bars in a case.

Your packaging is, to your customer, an indication of the quality of the product it contains. By the time you’ve formulated and produced your product, it feels like an eternity; but don’t rush through your packaging process! An incorrectly or inadequately packaged soap can damage your product and lead to returns or worse, a lost customer. Whichever packaging type you choose, be sure to include a compliant label. You are essentially packaging your time when you finally wrap a finished product; make sure you give your packaging just as much attention as your product itself!

If you also make cosmetic products, such as lotions, scrubs or butters, watch for Handcrafted Soap & Cosmetic Packaging (Part II); Bottles, Tubes and Jars….oh, my!

 

 

Greener Life Diamond

HSCG Vendor Spotlight Essential Depot

GreenerLifeDIamondGreener Life Diamond

In anticipation of their exciting new announcement regarding The Greener Life Diamond™, we recently caught up with Derek Hodges President and CEO of Essential Depot, Inc. to ask a few questions about the conceptualization and need for The Greener Life Diamond.

Q. How did you come up with the Greener Life Diamond concept?

A. It was a long process of looking at many options and certification programs, towards the end of this process we were fitting HAZMAT diamonds on our trucks and the idea hit me!

Q. What kind of positive impact do you see coming from the Greener Life Diamond implementation?

A. Consumers are more ready than ever to buy products from companies that value kindness and social responsibility. The Greener Life Diamond™ allows them to assess, compare, and make informed choices in the marketplace. Consumers will reward companies that make the ethical decision to lower their impact in the four quadrants of the diamond, with the ultimate result of improvement in the four areas of environmental concern.

If we get the press we are hoping for both here and in Europe, we expect it to advance consumer awareness and the Greener Life cause and help differentiate ours and our customers products in all sales channels. Find more here: white paper.

 

carbon footprint, animal friendly, eco-friendly, fair trade

“Deforestation, much of it to clear land for palm oil plantations, has destroyed more than 80 percent of the orangutan’s habitat over the last 20 years. The past decade has seen the wild population cut in half and these animals may very well go extinct in the next decade. (Source: GreenerLifeDiamond.pdf)

 

Q. How does an individual or business learn more about Greener Life Diamond™ and become qualified to utilize it within their own product labeling?

A. We will be releasing an extensive “greener life diamond labeling tools and resources” for this at the HSCG Conference in Tampa, FL – May 18-21.

Q. We understand that Essential Depot is holding a workshop May 16-17 in Sebring, FL for customers and suppliers to learn more about Greener Life Diamond™, can you tell us more about that event.

A. At the Greener Life Diamond Workshop we will present the final White Paper, for customers, suppliers and other key industry professionals, the workshop will fully brief them on all aspects of the Greener Life Diamond™ RED initiative. Videos of this event will subsequently be available to all at Fyi101.com. If you feel you would like to attend the Greener Life Diamond™ Workshop email susan@essentialdepot.com and we will do our best to accommodate you.

 

Be on the lookout for more releases from the Essential Depot Inc. regarding this new concept. For more information on the Green Life Diamond find the first white paper on the Essential Depots site here http://www.essentialdepot.com/GreenerLifeDiamond.pdf