Saturday, May 24, 2008

Copyrights, Trademarks, and--you guessed it--Patents

I figured it's about time I address the issue (returning to the issue for some parts) of copyrights, trademarks, and patents. Being not a lawyer I am going to make a self-educated attempt at explaining the aforementioned in layman's terms and how they apply to my life. (With a nod to my cousin, Chrissy, who IS a lawyer, and so graciously reads my blog.)

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.

Huh?

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:
http://www.uspto.gov/web/offices/tac/doc/basic/register.htm
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."
Apparently the so-called "protection" that a registered mark provides is not really all that great/helpful in my (and my peer's) situation...therefore, I won't be needing the service. I think that I have adequately, for my own purposes at this time, "established rights" in my mark. Of course, I'm not a lawyer.

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. :)

3 comments:

  1. You know what? I bet they're feeling the heat from cloth diaper's rise in popularity (although they surely can't be losing THAT much money). And Pampered being a term no one can use? How pompous. I think they'd like to believe they made up the word "pamper" and its derivatives. *sigh*

    ReplyDelete
  2. Look up info on Mattel vs. Super Duper Publications.
    Mattel actually sued them for the rights to the word "say". Can you even believe it!?
    Mattel won a huge settlement.
    What has the world come to? Super Duper makes educational things for special needs kids. Maybe even some that Mattel has poisoned with lead paint and now they could go out of business because of Mattel.
    If I were you I'd just stay really quiet about your name and if it ever comes up you might have to just let it go. It's just not worth it because those big companies run the world these days. Either that or start using a co-name now so everyone will get to know it and then drop the "pampered" later.
    Random Example: "Pampered Cheeks/Sweet Tushies" or something like that and then after a while just drop the "Pampered Cheeks" part. Who knows though, "sweet" might be up for battle someday too, lol.
    Best Wishes,
    Jennifer

    ReplyDelete
  3. You did a great job explaining all of this. And I think Pampered Cheeks is the perfect name... and it's too late to be "really quiet about your name" since the cloth diapering world has already stood up and taken notice! And I'm here to fight with you. *grin*

    ReplyDelete