The reason this topic is rising [again] is mostly due to a peer of mine undergoing some legal pressure from a big name company bully. My peer is also a diaper manufacturer, and the point in question is a debate over whether the name "pampered" is trademark infringement. It is not, in my opinion, yet because some big-name company with billions of dollars wants to say it is, they say it is. Bullies on the playground.
It may help to have a little background by reading the story here: http://clothdiapernews.com/?p=135
Basically my peer applied for a trademark to register her company name, which included the name "Pampered." After filing and paying the fees, she received a letter from the bully's lawyer, which said she must abandon her trademark application and also, "agree not to use the trademark PAMPERED, PAMPERS or any derivative thereof on any baby related product, including, but not limited to diapers and wipes, or in any other manner likely to create confusion with P&G’s famous PAMPERS trademark."
Gasp. I just gave it away.
Anyways, it really frustrates me! On what grounds can they demand she agree not to use the name pampered on any baby related product? She appeared on t.v. relating this topic, and the t.v. reporter also interviewed someone from the big company. This person suggested that a "simple trademark search" would have revealed that the name was taken. Ahem. It IS NOT. In fact, a SIMPLE trademark search for the name "Pampered" revealed TWO unrelated companies making/selling BABY RELATED products under the same trademarked name.
Basically, they are telling her to stop using the name Pampered, claiming it is trademark infringement, and that it will confuse people. (Yeah, because people will be SO confused when they end up with cloth diapers instead of disposables). But the basis of their argument is absolutely ridiculous. There ARE other companies selling baby related products under the name Pampered. Under the REGISTERED trademark name Pampered. And a simple search would have let the big-name company realize that. Duh.
Do I have to mention what implication this has on Pampered Cheeks?
Well, I have not received one of these letters. I have not applied for a trademark and I refuse to do so. And here is why: What is the purpose of a registered trademark? This page right here is what made me decide not to:
Since the uspto tends to change their site frequently and make links go dead, here's the important part:
"Is registration of my mark required?
No. You can establish rights in a mark based on legitimate use of the mark. However, owning a federal trademark registration on the Principal Register provides several advantages, e.g.,
- constructive notice to the public of the registrant's claim of ownership of the mark;
- a legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;
- the ability to bring an action concerning the mark in federal court;
- the use of the U.S registration as a basis to obtain registration in foreign countries; and
- the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods."
To add to the topic while I'm on it, my patterns are automatically protected by copyright, as are my website, my blog, and anything else I create/write. That means you cannot copy my written words/patterns without my permission. If, however, you obtain a copy of my pattern, there is nothing that I can do to stop you from making AND selling your own diapers made from the pattern. That is NOT protected by copyright, because diapers are useful objects.
If you do that, do not infringe on the trademark by calling your diapers "Pampered Cheeks." IF my diapers were made with some original or unique idea and I could prove that NO ONE else had ever thought of this idea, then I could patent the idea and prevent you from making diapers like that. THEY ARE DIAPERS. We, as far as we know, have been diapering kids for the past 6,000+ years. I can't patent a whole dang diaper, so all I could possibly patent is some small feature, which you could easily work around.
Got it? :)
Basically the uspto charges an exorbitant amount of money for a service that is not exactly what you think it is and falls short when you need it most. Kind of humbling, huh?
That's my lecture on the topic for today, and hopefully I won't be revisiting it for a while. If I do happen to get one of those letters, well, I probably will not just roll over and die. Nor change my company name. But I probably will cry a little bit before I calm down and figure out how I'm going to fight.
One thing I know for sure. P&G does not honor God with their business practices. The God I serve is bigger and better than their's. My business rises and falls only by His grace. When He calls it to be over, it will be over. It belongs in His hands. :)