What’s Wrong With The Trademark System
So you start a business and come up with this great name ‘MyName’ (hypothetical name used for this story). You want to play it by the numbers and you check everywhere if the name is a ‘registered trademark’. You’re in luck and you decide to register the name before anyone else does. Good thinking. For our hypothetical case we’ll assume that the name you came up with consists of two syllables f.e. ‘MyName’. Later in the story, you’ll find out why this is a good example but not a good choice. Even though there are hundreds of thousands of companies with such a name. It’s a popular thing.
Ok, so where do you begin, where do you register it, and how are you going to register it?
There are lots of ways to register a mark, from your local lawyer to an online service to the registration offices themselves. The cheapest way is via the registration offices, but you’ll have to chew through loads and loads of documents and rules and exceptions and requirements and what have ya. You can for about 4 to 5 times as much have an online service prepare the documents for you, or for about 10 to 20 times as much you can hire a lawyer who specializes. Whichever way you choose, there is no guarantee you will actually get the registration. No, there isn’t!
Limited by country
First of all, you have to realize that trademarks are only protected in the country you register it in. So if you intend to do business in country A, you’ll have to register the name in country A. Sounds pretty logical right? Well, here is where the Internet poses a problem. You can think you are protected in country A, but in country B someone also registers the name and promotes goods on the Internet. Are you protected? No, only if country A and country B have an agreement! Even worse, that someone else actually copies your ideas and markets the same products or services using the same name and even copies specific product names. Are you protected? No, only if country A and country B have an agreement! If you are filthy rich just register your name in every country where they have a registration service, but does that protect you from that occurring on the Internet? No, it doesn’t!
Let’s say that you have successfully registered our hypothetical ‘MyName’ in country A, and now wish to register it also in country B because you are going to market your goods there. So you pay the hefty fee and await your registration number. Hey, wait a minute, why was it rejected? I cannot use a name that is a combination of two words? What? So MyName consists of My and Name and therefore cannot be registered? But it was accepted in country A, and it is the name of my company. Too bad, country B does not accept such marks so take a hike. And what about the hefty fee, I’ll get it back right? No, you don’t! This happened to me in the UK at a cost of 400 pounds. And here some examples of combined words that ARE registered in the UK: APPLEWORLD, APPLECENTRE, Facebook (Date of publication: 03 September 2010), Microsoft (Date of publication: 14 December 1998), SnapChat (Date of publication: 06 November 2015), and the list goes on and on. I guess they fell through the “crack” or because “face” and “book” are not words and thus Facebook is not made up of combined words? BTW, they used attorneys for the registration. And then it’s OK, right? And to check the UK register you go to UK Trade mark search.
Inconsistent reasons of refusal
You have registered your name and it appeared to have been approved. And, hey, wait a minute, 3 months later you get a notice? The name is not accepted because you did not show that the mark is clearly used on packaging, brochures, and other goods related items. But I want to protect the name since it is my company name and I market ALL of my goods and services using this name. Well, YOU CAN’T! Amazing right? You can only protect the name if it is used for goods or services that you have to meticulously describe according to a manual of goods and services. And provide proof that the mark is used! But I have a company registered in that name? And I’ve searched the database of trademarks and found thousands and thousands and thousands of registered trademarks that are not being used for any goods at all. So how did they get the mark approved? Good question! Maybe because they paid a considerable sum to a lawyer who specializes in trademarks? Or they lied?
Inconsistent reasons of refusal when renewing
So you have a trademark registered and all is well. Then it’s time to renew. Well, that’s shouldn’t be a problem right? Hellooo, it is! When I paid for the renewal and left everything as is, it was refused. The image with the name (which did not change) could not be approved. So you file a complaint, oh yeah, that costs $100. Paid that and reuploaded the image. Refused again. Complain again, and yes, pay $100 for them to review the complaint. And so forth, and so forth. I quit at that stage, and since then my name is not trademarked. Awesome rip-off service US Trademark Office.
Limited time to oppose a mark
Let’s now assume you’ve tried and failed to register your name – it happens all the time-, so you start your business and use the name anyway since no one else claims it. You’re happily on your way for several years, and decide to check again to register the name because you’re growing and want the protection offered by the registered trademark. Good thinking on your part again.
Hey, some one else registered the trademark in the same year that you tried and failed. But how is that possible? And wait a minute, they are not even marketing any goods or services using that name at all. How is that possible? Ok, I’ll hold on, go ahead and hit your wall with your head for a few minutes. Didn’t really help, did it? No, it didn’t!
Ok, let’s see what you can do to object to this registration because you have been registered with this name as a company before the other party even registered the name. Should be possible right? Let’s see, there it is. What? You can only object to the registration within a set time period? And it’s passed that period? Can you object to this in any way? No, you cannot!
A lot of no’s and lots of inconsistencies? Too many if you ask me. From my experience with registering trademarks over the past 12 years, it’s just a big joke and in most cases just a lawyer’s paradise for charging exorbitant fees. And with the Internet the joke is even funnier. Question is, when are governments going to upgrade this service and offer the protection needed in the 21st century? Upgrading of the fees doesn’t seem to be a problem. It never is. Is it really that hard to offer an online service with online payment facilities built as a content management system and simply allowing registrations that have to meet just a few simple criteria?
1. Is it your registered company’s name? Then the name is yours for the entire country. Over and out!
2. Is it a slogan or other specific textual or graphical item? Not registered yet, then it’s yours.
3. Is it already in use? If so, why allow registration if it’s supposedly for other goods or services? Leaves the door wide open for abuse as it the case at the present time. If not, submit the specimens and register the submitted request.
4. Someone registered a mark which is clearly not in use, nor is it the company’s name, and someone else contests this. Well, investigate and if the contesting party clearly has more claim to the mark (f.e. registered company name), change the registrant in your database. Done.
So it’s as easy as 1, 2, 3, 4, is it? Then why are the current systems so full of rhetoric, manuals, legal mumbo jumbo, and so on, and so on? With all the legal advice at their disposal surely they can set up a simple, sound, realistic trademark system? I know I can!