Trademark Use in Commerce

There is no requirement that you must actually use a trademark prior to filing a trademark application. However, prior to obtaining a rademark tregistration you must demonstrate to the trademark office that you are using the mark “in commerce” which can be regulated by Congress.

So what exactly is required to demonstrate that you are using a trademark “in commerce”?

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Band Partnership Agreements

A band is a business. Like any business, the band members should agree upfront how the business is going to be run, how revenues will be distributed, and what happens if one or more members leaves the band.

Organizing and putting down in writing the rights of each band member is far easier and less expensive then waiting for a dispute and “lawyering up” for an expensive lawsuit.

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DMCA Safe Harbor

The Digital Millennium Copyright Act (DMCA) safe harbor provisions protect websites from liability for material posted by their users. For example, if one of your users posts a copyrighted picture on your company’s help forums, the DMCA safe harbors will protect a compliant company from copyright infringement claims and monetary damages. This limited liability, however, only kicks in if the provisions codified under 17 USC § 512 are followed to the letter.

If your company has an interactive website, online community, message board, or blog comment section, it is critical that your business verify that it is in compliance with the DMCA safe harbor requirements. Failure to strictly comply with the DMCA safe harbor provisions can substantially increase your company’s liability for the actions of its website users.

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Nice Agreement

Most countries in the world, with the notable exception of Canada, employ the International Trademark Classification System, adopted as part of the Nice Agreement. This system classifies trademarks in forty-five (45) broad categories of goods and services. When filing a trademark application, you must identify which class or classes of goods or services you wish to cover and pay a separate filing fee for each class. Because the trademark office reviews each class of goods independently, it is typically advantageous to file a separate application for each class sought. (That way if one class is rejected or requires further review, the other classes will not be held up and the applications will register faster).

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Copyright Clearance

Republishing news articles on your company’s website or in its newsletter is a great way to economically obtain fresh content which may be of interest to your customers.

Business that want to reprint news articles, however, must obtain the correct copyright permissions prior to publication. Not taking proper steps before republishing articles can lead to a demand letter with the threat of litigation — or in some cases (e.g. Righthaven) a lawsuit without warning. Without question, it is less expensive to clear copyright permissions ahead of time rather than attempt to clean up copyright infringement after the fact.

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