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    Open E: Registering Trademarks

    This is the third post in a series called "Open E at MT." In the spirit of the Open Source software movement, I'll be openly sharing my learning experiences at an e-commerce entrepreneur.

    Last week we received two envelopes in the mail. Each contained heavy manila colored folders with big gold seals: our official certificates of registration for our trademarks No Limit Texas Dreidel and Go All Spin. I was tickled to see that we actually get paper certificates in this electronic age. Don't know what we do with them other than file them away. But they are a nice tangible thing to hold onto after over a year of pursuing the marks.

    Filing is on the web and simple and relatively cheap ($275 or $325 per mark) once you know what you are doing. Figuring out what to do is an Intellectual Property Attorney's forte and I paid $750 for an attorney to create an IP plan for me. I did the initial trademark search to make sure someone hadn't registered a similar mark already. Then I filed online using the TEAS, Trademark Electronic Application System. After that, you wait for the government to notify you of your mark's progress and answer any "Office Actions" -- it is all done electronically. Once my wonderful partner joined ModernTribe with her IP attorney husband, he took over for us and ushered the marks through to their final registered status (Thank you Todd!).

    I'll share with you what I think was the trickiest part of the whole shebang: figuring out whether or not a mark is register-able at all. You can go ahead and apply but if you get rejected, you'll lose your 300 or so bucks. So it is worth consulting with an attorney upfront.

    Among other things, registerableness requires that your mark (or something similar) isn't already registered and that it is not descriptive.

    Not Already Taken. You've got to make sure there isn't a similar mark already registered for the same class of Goods and Services. Classes are the type of Goods and Services in which the mark is used; No Limit Texas Dreidel is registered for use in class 28, Games and Playthings. You can do the search online using TESS, the Trademark Electronic Search System and it's fun and educational to snoop around and see how other people are using marks.

    Not Descriptive. The mark can't simply be describing something in general terms. This is a tricky concept. An example of a clearly non-descriptive mark is found if you search for Dreidel. You will find the single word "Dreidel" is registered by a company for the class of stuffed animals. Dreidel does not describe stuffed animals, therefore it is register-able. One could NOT register the word "Dreidel" for spinning tops because, of course, it is simply a descriptive term.

    Similarly, if Georgia Law Group is located in Georgia, it cannot register the name as a service mark because it's simply a descriptive name. However, if Georgia Law Group is located in Texas... well, then, it's not descriptive. Can you see how this worked for us and No Limit Texas Dreidel? The reviewing attorney asked if the game was created in Texas, relates to Texas as a state in any way. Because it does not, the mark is registerable. Tricky? Yes!