Should I Register a Trademark?

Some of the most common questions small businesses and startups ask is about trademarks -- is it worth it? When should I seek one? What can a business trademark? 

Here's the lowdown: trademarks are essentially about protecting brand identity. You can register a trademark for a service or good if the chosen name is not generic and does not infringe on an existing trademark. You may trademark a business name. You can even register a trademark for your given name if your name also identifies a business (Ralph Lauren has had his name trademarked since 1972).

It's important to note that you may have common-law protection for your brand even without filing for trademark status. In the United States, this means that if your name is non-generic and non-infringing, the common law provides protection for the first use of a name in a product category or geographical area. Of course, just as in a registered trademark, you will have to enforce your trademark yourself (the USPTO does not enforce trademarks on an owner's behalf). 

It’s a good idea to get your trademark registered, however, because common law rights are limited to the geographic location in which the mark is used and because registration will help you in case of legal challenges -- a registered trademark allows the owner to sue in federal court and puts potential offenders on constructive notice that the trademark is claimed as exclusive to the owner, saving you valuable time in court if there is litigation. 

While it is possible to file a trademark application without the aid of an attorney, it is nearly always better to do so. One mistake, as one of our clients found before coming to Howard & Kilgore Law, can cause months of delay and added expense. This is doubly important for a company such as a software startup, as there is often nuance to how you describe your product or service that will enhance your chances of getting your registration through.

If you have any questions about securing or enforcing a trademark, contact Howard & Kilgore Law for a free consultation. 

Social media makes life easy for Prosecutors

You might be surprised by what some people will post on Facebook.  Perhaps the mostly younger demographic of social media users feels so comfortable communicating via social media that some forget it is a public forum.  Or perhaps, having never experienced a time when most communication was private, the significance of social media being public is just lost on them...

Whatever the reason, the private (and often inculpatory) nature of the things people post to social media is legendary. Things like “F*&# you snitch…we’re gonna rock your bf again just for S#&@* and gigs. Don’t gotta bring violence to raves.” This little gem was a key piece of evidence in a recent assault case in  Seattle. The Defendant posted this threat/admission from his personal Facebook account to a discussion thread started by an acquaintance on an unrelated topic, where it could be read by hundreds of other people (including, eventually, prosecutors).

Or how about the Defendant who admits to a  sexual “relationship” with a 14 year-old girl (the Defendant was 21 at the time) on a public Facebook discussion thread?  The Defendant in that case compared his relationship with the girl to that of Romeo and Juliet. Kitsap County prosecutors took a somewhat different view.  The Defendant was convicted of communicating with a minor for immoral purposes.

Defense attorneys should be checking their client's social media pages, or at least asking their clients what the prosecutor will find if they look.   The day where checking social media is a routine part of a criminal investigation is not far off.  Some police and prosecutors are already there.

Civil Forfeiture and Tribal Courts

Civil forfeiture is a legal doctrine that allows local governments to take the property of individuals accused, or suspected, of crimes. The individual does not need to be found criminally guilty nor does the state have to wait to the conclusion of the criminal legal proceedings. In most jurisdictions, the government merely must show by the "preponderance of the evidence" that the property or money was used in connection with a criminal offense. This is a much lower standard than "beyond a reasonable doubt."  

In civil forfeiture proceedings, property owners have even less protections than in criminal proceedings -- an individual has no right to an attorney in a civil forfeiture proceeding, nor do they have a right to a jury trial. 

In recent years, the practice of civil forfeiture has become more popular in tribal courts in Western Washington. If you've received a notice of civil forfeiture you MUST respond and appear at the date specified on the notice. If you don't appear, the government will automatically win, and you will have lost your property forever. You should also consider hiring an attorney to help you keep your property. There's no substitute for experienced legal representation.