Technicalities of Advertising and Naming?

[Anejo]

Nebraska:
I have a two part question regarding the legal technacalities of advertising and naming a business.
The first part of the question is whether or not this tactic would be legal:
If in an online advertisement you post pictures of news sources with "reviews" by them and then in small print at the bottom of the page make a notation that they are not depicting actual reviews. I ask because I see several products that are "highly revered" by the NYT and other publications and I have a feeling that they aren't.
My other question is if you want to name your business something but a different business with a completely unrelated product has the same name but no trademark can you also use the name?

Thanks

 

[quincy]

Nebraska:
I have a two part question regarding the legal technacalities of advertising and naming a business.
The first part of the question is whether or not this tactic would be legal:
If in an online advertisement you post pictures of news sources with "reviews" by them and then in small print at the bottom of the page make a notation that they are not depicting actual reviews. I ask because I see several products that are "highly revered" by the NYT and other publications and I have a feeling that they aren't.

This is not allowed. You cannot use trademarks to promote your business without permission from the trademark holder. Disclaimers will not work to prevent a lawsuit. They can only work to mitigate the damages that can be awarded against you, should you be sued over your use.

There are a few exceptions to this (e.g., parody) but the general rule is that you do not use rights-protected material (be it copyrighted material or trademark-protected material) without the express written permission of the holder of the rights.

My other question is if you want to name your business something but a different business with a completely unrelated product has the same name but no trademark can you also use the name?

Possibly. But specifics matter. For example, you cannot use the name Disney or the name Google, even if you have a restaurant business. The names are famous ones and, with famous trademarks, the trademark holder can prevent ALL other uses of their name. On the other hand, if you choose a name that is shared by a business totally unrelated to your own business, the name is not a famous one, and the use of your name does not lead to or is not likely to lead to consumer confusion over the origin of the product or service offered, you can potentially use the same name.

As a note: A business DOES have a trademark if it is using a particular name to identify its business, product or service. The name IS its trademark, whether the name is registered with the USPTO or not.

It can be important when starting any new business to consult with a business law professional to best ensure your business is not infringing on anyone else's rights. One of the quickest ways to end a promising business is to involve it in a lawsuit at its start.

Good luck.

 

[lovethyneighbor]

From what I know, Quincy is right about both subjects.

Regarding the business name, I would say you're probably safe to use the same name (if it's not famous). But I would check your secretary of state's website to make check if that business name is registered in your state. If it is, I'd suggest using a different name. Safer that way...

 

[Silverplum]

From what I know, Quincy is right about both subjects.

Regarding the business name, I would say you're probably safe to use the same name (if it's not famous). But I would check your secretary of state's website to make check if that business name is registered in your state. If it is, I'd suggest using a different name. Safer that way...

Yes, Quincy is correct, and doesn't need a new poster to vouch for him.

 

[quincy]

From what I know, Quincy is right about both subjects.

Regarding the business name, I would say you're probably safe to use the same name (if it's not famous). But I would check your secretary of state's website to make check if that business name is registered in your state. If it is, I'd suggest using a different name. Safer that way...

Yup. I'm right about both subjects.

However, you are right, lovethyneighbor, that choosing a name that is unique to you alone is always the safest way to operate. In addition, should you seek to register your business name with your state, a state does not have to accept registration if your business name is the same as or similar to one already registered - this whether your business operation is the same as or similar to the one registered.

For a name's availability in Nebraska, a business should check with the Secretary of State's Office. Here are links: http://www.sos.ne.gov/business/corp_serv/name_procedures.html and http://www.sos.ne.gov/business/corp_serv/businessstartups.html

Even if you are unable to register your business name with your state, this does not preclude you from registering your name federally, with the USPTO. Several "same name" companies peacefully co-exist in the marketplace. The major determiner with trademarks will be if consumer confusion is likely to arise through the use of a same or similar name. Here is a link to the USPTO: http://uspto.gov

 

[Superkingnvt]

Yes, Quincy is correct, and doesn't need a new poster to vouch for him.

_____love it______

 

[quincy]

_____love it______

I "liked" it but "love it" works, too.