Trademark & Copyright Question

[bern75]

I wanted to know if anyone can give me some answers on branding/copyrights/trademarks or recommend a web site that I can get some legal advice. I am in the process of starting a small online apparel company and I wanted to make sure my brand is protected and I don't violate another brand's rights. I am going to use the fake name of "Burning Tree Apparel" as my "brand" name for this example. First, if I want to ensure that my brand is protected, do I want to get the brand trademarked or copyrighted. From what I read on Legal Zoom it should be copyright. Second, if someone already has the domain burningtree.com registered and I want use burningtreeapparel.com is that a conflict. I have more questions but I will start with those. I have a few follow-up question but I will start with those.

 

[justalayman]

It cannot be copyright since names and short phrases are not eligible for copyright protection. You are looking at trademark protection but understand that your rights in a trademark are not granted by registration but by use. If you will visit the trademark registration site, you will find that you cannot be granted registration until you use it in commerce. You can register an ITU (intent to use). That is valid for 6 months with possible extension, depending on the specific facts of the situation. With that, it is simply an initial registration to act as a notice of your claim to the mark based on your intent to use it in commerce soon. If you do not use the mark, you do not gain any benefits from the ITU registration.

burningtree.com registered and I want use burningtreeapparel.com is that a conflict.

You cannot register a domain name as a TM unless that is how the mark is actually used. I cannot think of any offhand but I know there are some out there with names of the actual business being XXXXXXX.com. The issue with domain names is they are subject to control by ICANN which is the entity that makes the decisions regarding domain names. They could remove your use of the name as you suggest if burningtree.com challenges it and wishes to grab your domain. It is a more arbitrary control than TM law allows. Beyond that, if your name is considered to cause consumer confusion (the basis of what a TM essentially represents) with burningtree.com, burningtree.com may also have a valid claim of TM infringement as well.