Using the web to gain multi-class TM rights

[abcsmith]

What is the name of your state? Ohio

I have a trade name that I plan on using with several classes of products, both online and offline. I only have the financial resources to file a federal Trademark application for one of those classes. To gain common law protection in the other classes I plan on joining affiliate programs for a variety of products that cover the range of classes. The affiliate programs pay sales commissions for customers referred through my web site. My main question is - Is this an effective strategy to create common law protection in the unregistered classes?

I also have a related date of first use question. For the TM application, which is the first event to qualify as a first use?
1. Register the domain
2. Put up a web page describing the products that the site will sell.
3. Register with affiliate programs.
4. Put affiliate program linking code on the web site.
5. Engage in marketing activities such as registering with a search engine.
6. Get the first click-through to an affiliate.
7. Earn the first sales commission.

Thanks for all advice.

Al

 

[FlyingRon]

To get trademark status you need to use your mark in commerce in the areas you wish to gain protection. I'm not sure what it product or business it is that you are trying to protect but affiliate status generally sells OTHER peoples items through your site, you need to do the reverse, market your mark through as many channels as possible.

 

[abcsmith]

Thanks Ron. I was hoping that if the web site uses the mark prominently for branding and sells products that fall into the classes that I want to protect, that some protection would be gained. In this case, I use the term "sell" loosely because the final sale is concluded by the other web site, but the marketing is through my site and the mark would be crucial to attracting customers. This seems somewhat similar to a retailer that sells a class of products like sporting goods. A manufacturer couldn't start making sporting goods under the same name because it would cause confusion. Even though the activities are different, one is a retailer and the other a manufacturer and wholesaler, the class of products is the same. Why would the affiliate structure be qualitatively different?

Your answer worries me about one class that I thought that I'd be able to protect a little more strongly. One of the affiliate programs in question sells t-shirts with my designs. The motivating selling point of the t-shirt that I'm selling is the mark, much in the same way that the Nike mark is used on t-shirts. I had been hoping that selling a t-shirt this way would confer fairly strong common law protection. Am I being overly optimistic?

 

[FlyingRon]

I would think that unless the business you are trying to protect is an ecommerce or portal site, that setting up these shell things will do very little into establishing your trademark status.

 

[abcsmith]

This tactic is actually meant to be part long term business plan, at least for the online portions of the plan. Marketing and sales will be real, just not for most classes. The site will serve as both a portal and a store, but implementing the store for most classes will be very slow, and for these classes the "shell" terminology is apt to the extent that any income for these classes is indirect. I was under the impression that online activities also create off-line protection. That's not true?

All questions of the quality of the protection aside, which of the events in the original question qualifies as a first use for the federal trademark application? Thanks again.