[RAHchills]

I've been reading up on the subject and I'm convinced that I want to trademark my brand and incorporate to separate my personal assets from my professional assets. It just seems like a hefty price to pay while I'm still sitting here at ground zero not making any money.

I'm leaning toward starting the online T-shirt business aimed at my niche market, guerilla marketing it up, and seeing what comes of it in attempt to keep my entry costs as low as possible. I've searched the topic on the boards and understand that I can place a TM next to my brand name until it is actually registered, which is cool with me. I've done some initial research on the TM site and don't think that the name and mark I've chosen will be a problem. (I know that could change with more research, but those are the breaks right?) I'm also thinking that I can hang out as a sole proprieter <sp?> until I start making some real sales, at which point I can incorporate for my own peace of mind.

So what's the worst that can happen to me if I sell first and register/incorporate later? Somebody hijacks my mark? I get sued for (insert reason here) because its the American way? I need to know a worst case scenario so I can decide whether its worth my $600-$1000 up front or if I can hold out and have the business pay for it...

 

[Teeshirtman]

Hi!

We Have three things here ,
1 A trade Mark
2 A Copyright
3 A reg Copyright

Copyright is reseved for writing or Text , Your work is copyrighted as soon as you express is in any public form .

A Trade mark is a image created by you or for you. That too is copyrighted but
not registered.

A reg copy right has been sent to the the image belongs to you from that date.

You may put the copyright or TM sign next to your work but not the REG TM or
The "r" until you actually reg it.

The worst case would be if somebody copied your work you would have to sue
them in Fed Court and if they registerd it before you did then you would have to prove when you came up with the design or you lose.
The best thing to do is to e- mail yourself or some body you trust , your design.
that would give you the proof but you still would have to go to court to win it back.

Good Luck
fred

 

[Solmu]

The best thing to do is to e- mail yourself or some body you trust , your design.
that would give you the proof but you still would have to go to court to win it back.

No, it won't.

In fact, it will get you laughed at. I would challenge the judge to hold his composure if you presented that as "evidence."

I see the poor man's copyright myth has gone digital. Le sigh.

 

[RAHchills]

I appreciate the feedback, but before this gets out of hand: I understand the difference between copyrighting my individual designs and trademarking my brand/logo. I also understand the "poor man's copyright" to be a myth. I don't really want to talk about copyrighting my designs in this thread. In this thread, I'm asking about trademarking and incorporating...

What's the worst that can happen if A. I don't attempt to register my brand/logo as a trademark right away but throw a "TM" next to it, and B. I don't incorporate right away to protect my personal assets?

The thing that's driving this is that if I don't spend the money up front on a trademark and incorporating, then I break even by selling 50 fewer shirts. If I never breakeven, then I saved myself $600-$1000 bones. If/when I do break even, then the trademark and incorporation fees become a business expense out of the business account and not my wallet...

 

[Comin'OutSwingin]

I don't know how much it is to incorporate in TX, but I just incorporated in TN last week for $100.

Also, it was surprisingly easy. A 1 page form with very little info to fill out. I downloaded it off of the state's website, took it downtown, and in 15 minutes I was President & CEO of Conquer Clothing, Inc.!

If you do the trademark yourself, it's about $325.

If you don't trademark, use the TM symbol and it will protect you until you get registered. Worst case scenario is that someone steals it, you find out, and sue like crazy! Also, check to make sure that someone else isn't using the name you want for your class of good/services (apparel).

Trademarking at this stage is not necessary, because if you do your homework, you are still protected.

Incorporating is also not necessary. You can always just keep your business and personal finances separate. But, if it is protection from personal assets that you want, then forming a corp. or LLC, is necessary in order to achieve that.

 

[Solmu]

I understand the difference between copyrighting my individual designs and trademarking my brand/logo. I also understand the "poor man's copyright" to be a myth.

I figured you did, but it's always best to be clear for the sake of bystanders.

The thing that's driving this is that if I don't spend the money up front on a trademark and incorporating, then I break even by selling 50 fewer shirts. If I never breakeven, then I saved myself $600-$1000 bones. If/when I do break even, then the trademark and incorporation fees become a business expense out of the business account and not my wallet...

That sounds like a decision, no?

Not trademarking is, in a sense, a gamble - but it's the one most people take without ill effect. If you trademark, you risk wasting your money - or worse case scenario even causing your business to fail for the want of $500-1000 (not likely, but you never know). If you don't trademark, you run the risk someone will steal your idea/business and manage to take it off you for good (even less likely). So it's a gamble of sorts.

It sounds like you consider trademarking a high priority, but also would rather take a more measured business approach. Why not go ahead without the trademark, then make your trademark your first business expense (as opposed to second, third, fiftieth...)?

(I suppose why not is precisely what you're asking, but there doesn't appear to be an obvious catch)

 

[Rodney]

I can tell you that I sold my brand for almost 6 years before I even applied for a trademark.

My dad told me it should have been the first thing I did. When I started, he kept saying I should trademark it.

But, at the time, I was financing myself with credit cards and going to school full time and working a full time job, so the idea of trademarking a t-shirt brand was beyond my thinking at the time.

There was sort of a gamble involved there, because, someone potentially could have tried to register a trademark for my brand before I did. Luckily, I was able to fly under the radar and there wasn't as many people selling t-shirts online back then.

Looking back, I think things went in the right order, because it was easier to prove my brand to the trademark office because I had been established for so long. If I had tried to trademark in 1996, I would have been denied with no way to appeal (this could have been due to the nature of my trademark...a phrase in the t-shirt/apparel goods category)

I probably shouldn't have waiting as long as I did, but I think it's a good idea to get it as soon as possible if you are thinking a long term brand. If you are just getting started, I don't think it should hold you up from starting to sell your t-shirts. I think too many people get help up on that point before they actually start selling...but then again, I'm not a lawyer

 

[tandami]

comingoutswingin- i hope you know that there is more to incorporating than just filing that ONE piece of paper.

 

[RAHchills]

Hey thanks a lot ya'll. I guess I just needed to hear that I wouldn't be taking a huge gamble by not trademarking/incorporating up front. I appreciate it.

 

[Comin'OutSwingin]

comingoutswingin- i hope you know that there is more to incorporating than just filing that ONE piece of paper.

Yes, I do. But I appreciate the heads up!

I never do anything with respect to business without fully researching it. I was just trying to illustrate how simple the process was for me, and the costs.

 

[Teeshirtman]

Pardon me ,
But yes it will.
In copy right litagation all you have to do is prove the exact date you came up with the design and e- mail is a legit claim and proof . Cases have already been won regarding this . As I said before if you reg it to the feds your coverd
If you don't some one could copy it and it goes to the first guy that has the earlier proof very simple
Thanks

 

[Teeshirtman]

One more thing I forgot,

Say I want to copy one of rodneys, Aside from Kicking my *** I'll bet
he could proove when he started selling that design even though he did not
copyright it. I would lose.

 

[Rodney]

In copy right litagation all you have to do is prove the exact date you came up with the design and e- mail is a legit claim and proof . Cases have already been won regarding this .

Can you point to copyright any cases won using email as proof of creation date?

Emails (and snail mail envelopes) can easily be faked and forged, so they are definitely NOT reliable in courts of laws. I'd love to see a case where someone won because of an email...since it would be a travesty.

 

[Comin'OutSwingin]

Me too.

I could create you a printed peice of paper right now that shows I created Rodney's "Circle R" and have it look like I emailed it to myself.

Like Rodney said, if there is a case anywhere that was decided based on such "evidence", it is most assuredly a travesty!


Poor man's copyright does not stand up in court, and I don't see how this would either.

Come to think of it, I know it won't. Let me check the US copyright website.
There is something there I know will clear this up.

Will post again in a second!

 

[Comin'OutSwingin]

Okay, these quotes are straight from the U.S Copyright Office website in their FAQ section:

I’ve heard about a “poor man’s copyright.” What is it?
The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.

also:

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”

end quotes!

It doesn't address snail mail or email. It simply says that sending it to yourself is insuffecient.

One more thing I forgot,

Say I want to copy one of rodneys, Aside from Kicking my *** I'll bet
he could proove when he started selling that design even though he did not
copyright it. I would lose.

Yes, proof is required, but sending it to yourself is not considered proof. Whether that's email or snail mail. That's the problem. He would have to show evidence of the date his creation was first in a fixed, tangible form. And obviously that proof would have to be more than sending yourself some stuff, in any fashion.

So, if you are going to bring a lawsuit, you have to register it first anyway.

 

[RAHchills]

well hey, since this thread was resurrected into a copyright Q&A...

I've heard some people say that you can put multiple designs into a "book" and have the book registered, and I've heard other people say that you have to register each design.

Which is it?

 

[Rodney]

I've heard both as well, but without a law case as precedent, I'm not sure which is true (or if they are both true in different circumstances). That's more of a question for a lawyer (or maybe even directly to the copyright office).

 

[RAHchills]

good call.

 

[aokusman]

I think (not sure) that you can. This will save costs.

 

[Solmu]

Pardon me ,
But yes it will.

When you back this statement up with an actual case, sure.

e- mail is a legit claim and proof . Cases have already been won regarding this .

...but not before.

Otherwise you're just spreading misinformation when you should know better.