Trademark and Blogs

Filed as Guides on September 22, 2008 10:04 am

When Patricia Houser reserved the domain name Palintology in early 2007, Sara Palin, the blog’s subject, was the Governor of Alaska and had not risen to national prominence. Houser, who had worked with Palin on her gubernatorial campaign, had obtained permission from the Governor to both create the blog and use her name in the domain.

However, both Palin and the Palintology blog were thrust into the national spotlight in late August when John McCain selected Palin to be his candidate for Vice President. Though both the site and the candidate were suddenly a global focal point, not all of the attention was desireable.

The worst example came when Newsweek used the Palintology name on the front cover of their magazine. This prompted Houser to not only begin the process of registering her trademark with the U.S. Patent and Trademark Office (USPTO), but also to contact Newsweek about potential trademark infringement.

But even as Houser and Newsweek seem to be working toward an amicable agreement, the story raises the issue about what bloggers can do when it comes to the names and logos of their blog. After all, if Palintology went from being a locally-focused political blog to having its name on the cover of Newsweek, so could almost any site.

Trademark Basics

According to the USPTO, a trademark is “a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods (or services) of one party from those of others.”

A trademark is created one of two ways. The first, and generally most common, is simply through use it in the marketplace. By using the term, logo or phrase in the marketplace to identify yourself, your goods or your services, you have trademark interest in the symbol.

The other is through formal registration with the USPTO, a process that can be expensive and time-consuming.

Though a form of intellectual property, trademark is different from copyright in several key ways.

  1. Protection of Phrases: Trademark law protects phrases, symbols and other small works that would often times not qualify for copyright protection.
  2. Limited Scope: Unlike copyright, which restricts the ability for others to simply copy a work, trademark has a much more limited scope, focusing instead on preventing confusion in the marketplace.
  3. State Laws: With copyright, there is not such thing as a “state copyright” meaning that, to sue for infringement, you need to register with the U.S. Copyright Office and file in a Federal Court. With trademark, states have their on trademark laws in addition to the Federal statute, meaning that you can sue for infringement even without a formal registration.

Most likely, you already have at least some trademark protection in your blog name, logo and domain. This is because you use those things both to brand yourself and your service, namely your posts, in the marketplace. This trademark can be expanded even further if it is used to identify a business, such as a consulting service, or is used on merchandise.

However, unless you’ve registered your trademark, the extent of the protection may be unclear and may be very limited. This will depend heavily on your individual situation including how unique your mark is, how you’ve used it and the relevant state laws.

It is worth noting that a trademark only applies within the marketplace it exists. For example, it is possible to have both Delta Faucets and Delta Airlines since the two do not compete with one another and confusion is not likely. Likewise, you can have Apple Music and Apple Computers and it is only when the computer company begins to sell music that a lawsuit arises. However, even that similarity was not enough in that case.

The bottom line is that trademarks are a very strange form of intellectual property, one that has a very narrow focus, but a very broad application.

Staying Out of Trouble

The most common place bloggers wind up in trouble with trademark issues is with their domain name. As illustrated in this Tubetorial, choosing a good domain name is the first step to avoiding trademark issues and failure to choose a unique name can result in either the loss of the domain through the Uniform Domain Name Resolution Policy (UDRP) or a lawsuit under the Anti-Cybersquatting Protection Act (ACPA).

Thus, it is important to search for a trademark, before registering a domain. As also advised in the Tubetorial, use both the USPTO’s Trademark Electronic Search System (TESS) and a traditional search engine to ensure that no companies or other sites might have a claim on that trademark.

However, even after your domain is registered you need to be vigilant about trademark issues. You need to ensure that your logo is not confusing to another mark, that you don’t imply a relationship that does not exist with another company (such as saying you are partnered or authorized by them) and that, when referencing other trademarks, it is clear you are not affiliated with them.

Generally speaking, talking about trademarks is safe since the protection deals solely with confusion in the marketplace, not mere copying, but it is worth looking at every mention and asking if a user could possibly be confused by it.

Protecting Your Trademark

Protecting your trademark is important as trademark law, unlike copyright, allows for a holder to lose their mark should they fail to protect it. This is one of the reasons Digg has been so aggressive about protecting its mark.

If you are interested in protecting your trademark, the first step will likely be a USPTO registration. Though you can undertake the process yourself, it is worthwhile to get the assistance of an attorney in this matter to ensure that you receive all of the protections available to you. Doing this will have many benefits, including the ability to sue in a Federal court.

More than that, it is important to stay on top of your mark and be aware of how others are using it. To that end, Google Alerts, if used correctly, is one of the most powerful tools available. Google Alerts will email you when anyone publishes a page with your trademark, whether it is a mention in a blog post or a site with the same name. This is a useful tool not only for tracking your trademark, but also the popularity of your site in general.

There are also services that will, such as Domain Tools Mark Alert, that will monitor for new domain registrations for any that could infringe upon your trademark. These services usually cost a small amount but may be useful in that they allow you to protest a domain name before the site goes live.

No matter what tools you use, it is important to stay on top of how others use your mark and, if you see any potential infringement, that you consult an attorney.

Conclusions

Though the conclusion of the Palintology case is far from certain, right now Houser and her attorney are working both on registering the mark with the USPTO and working with Newsweek to come up with an agreement.

The case, however, illustrates how a blog title can go from relative obscurity to a valuable global trademark overnight.

With the situation on the Web literally shifting overnight, it is important to be on top of your trademark, not just so that you can be aware of how people are using your site name, but so that you can protect the value in your investment.

After all, the value in a trademark is not something that is created. Valuable trademarks are earned and it is important to protect your effort.

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  1. By Lilly Mouse posted on September 22, 2008 at 12:04 pm
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    This is so useful, and such a well timed piece. I recently, a few days ago, had a run-in with trademark laws. This article would have been an even better read then…

    I run an online blogging magazine for female bloggers. We’re small (much smaller than Sarah Palin). But we used the term ‘blogher’ in our slogan and navigation keys. This infringed on http://www.Blogher.com – ‘blogher’ is trademarked.

    At the time I felt the term ‘blogher’ was like ‘blogger’ or ‘weblog’ – a hybrid term, free for use and already in common use.

    After some heated debate, however, this term was removed from the blogs primary level.

    Your article clears things up for me though, and I believe it was right to remove the term.

    In conclusion, Blogher.com was thoroughly professional and polite. Thankfully the situation ended happily-ever-after.

    Reply

  2. By Jessica posted on October 1, 2009 at 1:45 am
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    This is very useful information. It is very important to protect your mark, logo or slogan. You can easily do this through an affordable and reliable company: http://www.thetrademarkcompany.com. They come highly recommended. Thanks for the article!

    Reply

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