Sole Proprietorship

[Bruce ed]

Does the use of a name as a SOLE PROPRETORSHIP give any legel control of that name ?

[GEP]

Yes. This applies to sole proprietors and corporations alike.

 

Any time you start using a name to brand and market yourself, other people are not allowed to come along later and use the same name. You don't need to do anything "official" to earn these rights. The rights are automatically assigned to you because of The Copyright Law.

 

However, there's no way to stop another company from using the same name. You can only defend your rights to the name AFTER someone has infringed your rights. In order to win this fight, you have to prove that you were using the name first, and that the other company's use of the name has harmed you. There's lots of room for interpretation.

 

There is another level of legal protection, which is available to both sole proprietors and corporations ... you can register your company's name as a trademark. You still can't stop other companies from using the name, but with a registered trademark, you are assured of winning the fight. Read more about trademarks here:

http://www.uspto.gov...asics/index.jsp

 

My company's name is NOT registered. My strategy was to choose a name so weird that it wouldn't make sense for anybody else to use it. A common mistake is for small businesses to choose a very generic-sounding name, then they are surprised when other people try to use it. Duh! Be original!!

 

-Mea

[GEP]

I realized that I should be more specific ... The Copyright Law only applies in the US, and other countries will have different laws about name ownership.

 

And to add another thought to the concept of "name ownership," owning a trademark may not have much practical value to a small business, but owning a DOMAIN NAME has tons of practical value!! If you have an original idea for a name, buy the domain name asap!

 

-Mea

[CarlCravens]

I realized that I should be more specific ... The Copyright Law only applies in the US, and other countries will have different laws about name ownership.

 

 

I don't like to be a stickler, but I have to point out that copyright law has nothing to do with the name of your business... the name of your business (or domain name) is not a "work of authorship".

 

Trademark law is what you're looking for. And not all business names qualify for trademark status, and trademarks are regional and product market based. How many unrelated "Joe's Pizza"s are there in the US? The conflict comes when a second Joe's Pizza opens in the same neighborhood and causes market confusion. And "Bill's Wash-n-Go" (a car wash) and "Bill's Wash-n-Go" (a laundromat), even if physically near each other, are not in the same market... there may not be a conflict, unless it is determined that it causes market confusion.

 

Trademark law is really about protecting the consumer. It helps avoid confusion in the marketplace, such that when you buy a wheel that says "Shimpo" on it, you can be reasonably certain that it was produced by the legal makers of Shimpo wheels, and is not some inferior knock-off with a similar label. (In fact, a key measure of whether there is a trademark conflict is how likely it is that the consumer will be confused by the competing marks.)

 

Can You Trademark Your Business Name? (ezinearticles.com) (written by a trademark lawyer)

 

[GEP]

Carl,

 

I admit I was wrong about something. I checked on Copyright.gov (which should be the reference that we all use), and it turns out that a "name" by itself is not a "work of authorship." I guess my graphic designer viewpoint makes me assume that business names are always depicted as logos, which count as "works of authorship."

 

My bad.

 

I guess what I should have said is "if you have a good idea for a name, turn it into a logo asap, then you will gain copyright protection for the logo."

 

And you're right that not all business names are eligible for a trademark, I should have been more clear and said "If you want to protect your business name, get it trademarked if you can."

 

I didn't say that domain names were trademark or copyright related, I just said they had lots of practical value, so claim them as soon as you can.

 

But the copyright and trademark are not two separate things. Trademarks are part of the Copyright Law. The heart of a trademark is to protect Shimpo from losing money to the knock-offs, not so much protecting the consumers. But that is open to interpretation.

 

My point is every small business should understand the law, but also understand where the practical value lies. What's in a name? It matters for a big company. For a small business, like handmade pottery or "Joe's Pizza," it's a thin veneer compared to the substance of your business.

 

Anyone interested in more should visit http://copyright.gov .

 

-Mea

[CarlCravens]

I really hate telling people they're wrong (I feel like a villain), but I get frustrated at letting misinformation, however well-meant, about copyright, trademark and other intellectual property issues be spread. There's so much misunderstanding about the law, and some companies are actually confusing the consumer about their rights by claiming the consumer has fewer rights than they do.

 

(The recent rubber stamp question here, and the "Angel Policy" of rubber stamp companies... there is a very strong argument that, being that the nature of the rubber stamp is to *reproduce* its artwork, that the producer of a rubber stamp has little or no control over what the consumer stamps with it or what they do with the items they have stamped. I bit my tongue on that one, as there's no clear case precedent that I could find, but I don't think the rubber stamp companies have a leg to stand on.)

 

I don't enter into this casually... I've done quite a bit of study on the topic of intellectual property, including reading some pretty boring case summaries to piece together how the law gets interpreted. I think we're at a critical moment in history concerning copyright and copyright reform... never before has it been so important for the public to understand the law, because the Internet has made it so easy for the common person to create, copy and sell their work.

[GEP]

Hey Carl ... no worries ... I'd much rather have the facts stated correctly, than to "be right."

 

I totally agree with you that any working artist should care about intellectual property and its laws. I can remember some appalling discussions on clayart where it was being treated like a joke. ("if I make a sculpture of a mutilated Disney character, then it's ok") I felt like the lone voice saying "you can't do that" while everyone else was saying "lighten up." I hope that the attitude will be different on this forum!

 

-Mea