Of Blogs and Trademarks ...

In a post-Eastwooding world, all empty chairs have meaning

Dear Rich: I am planning on starting a blog that I might ultimately turn into a consulting/market research business (though in the beginning, like most bloggers, I will be providing only free articles and research). Since I might ultimately end up doing commerce under my domain name, and since I think the name is nifty and special, I am thinking of trademarking it right away. This raises a few questions: (1) If I am not actually selling anything yet, but merely advertising services or providing free online research services, is that enough for a full trademark, or merely an intent-to-use trademark? (2) Can I establish a trademark even if I don’t have an official business registration? Might this create any problems later on if I want to transfer the trademark from my personal name to that of the business? (3) Should I trademark the name of the domain or that of the business? If they are the same, does registering for one protect the other? (4) I have the business name and the domain, but I do not yet have a logo. Can I trademark them separately, or should I wait to trademark them all together? Sorry to slow things down but we have an obligation to remind readers that "trademark" is not a verb, so there is no such thing as "trademarking" a name. (We think you are referring to the registration of a trademark with the USPTO.)

1. To qualify for a registration, a trademark owner must be engaged in commerce regulated by the U.S. government. You can satisfy this requirement if you are writing the blog to attract clients, offer or advertise for services, or if you are leveraging the blog for income, for example, from Google Ads or affiliate programs. Note: this registration will only guarantee protection for use of the mark with your blog. Once you begin consulting services, you may want to file a separate application for those services. 
2. Yes, you can establish a trademark even if you don’t have an official business registration (that is, you haven’t filed a DBA, or created an LLC or corporation). You can always transfer the ownership and registration from your sole proprietorship to another entity. 
3. You should file an application for the name that consumers associate with your business. Usually that doesn't include the generic top level domain extension (.com, .net, .org, etc.). If you do seek to register the full domain name you will most likely have to disclaim the extension. (We discussed disclaimers in a previous post.) With a federal registration, you can stop others who use the domain name in bad faith 
4. Each mark should be the subject of a separate application. No, you don’t need to register related trademarks at the same time. Note: you must pay the fee (approximately $300) for each class of goods or services for which you want protection.

Does Site Owner Own Blog Post?

Dear Rich: Are an author’s blog posts the copyrighted material of that author, regardless of whose blog he or she posts on. Example, your blog is Nolo’s IP blog but if a post is authored by you, the words you wrote would be yours and you’d be free to republish in another work you write, right? I have a friend who is part owner of a site who wrote some blog posts based on company materials. But the words and thoughts are clearly those of the author/part-owner and every post has a byline to the author/part-owner. So who's material is it? For the sake of full disclosure (and even without FTC goading) the Dear Rich Staff acknowledges that it is employed by Nolo and this blog is created within the course of our employment. That makes Nolo the copyright owner. In other words, once these words ejected from our cerebrum and fixed on this screen, we relinquished ownership (a disclosure likely to haunt us during a future deposition.)
Author/Owner issues. In your question, the blogger is not an employee. Typically, the only way that a non-employee gives up ownership to blog material is by a written transfer (typically an assignment or a work made for hire agreement). But in your question, the blogger is a part-time owner. That raises a different set of issues. What type of business form is it -- partnership, LLC or corporation? If it is a corporation or LLC and the blogger is an officer, the blogger/owner may have written or fiduciary obligations. Alternatively, the corporation's or LLC's owners may have obligations not to compete -- something that might occur if the material was used for other purposes. If it is a partnership (the default for a group of owners who don't do anything formal), is the blog-writing considered part of the blogger/partner's contribution? That may affect claims to ownership. Finally, if the blog is derived from existing company-generated material or research there may be co-authorship or co-ownership issues. That doesn't mean the blogger can't republish it ... but the blogger would have to account to the co-authors if any money was earned.

Should I Register My Blog Name (or Domain Name)?

Dear Rich: I am planning on starting a blog that I might ultimately turn into a consulting/market research business (though in the beginning, like most bloggers, I will be providing only free articles and research). Since I might ultimately end up doing commerce under my domain name, and since I think the name is nifty and special, I am thinking of trademarking it right away. This raises a few questions: (1) If I am not actually selling anything yet, but merely advertising services or providing free online research services, is that enough for a full trademark, or merely an intent-to-use trademark? (2) Can I establish a trademark even if I don’t have an official business registration? Might this create any problems later on if I want to transfer the trademark from my personal name to that of the business? (3) Should I register the name of the domain or that of the business? If they are the same, does registering for one protect the other? (4) I have the business name and the domain, but I do not yet have a logo. Can I trademark them separately, or should I wait to trademark them all together? Wow, that's a lot of questions. Excuse us while we re-insert our caffeine drip. Answering your questions by number: (1) Yes, offering information is a service; you don't have to make traditional sales to be "in commerce." (2) We're not sure what you mean by "business registration" (we assume you haven't filed a DBA or incorporated or formed an LLC). In any case, it doesn't matter; individuals can register marks. It's easy to transfer from one entity to another, just be sure to notify the USPTO of the assignment. (3) You should register the term that best identifies your services to the public -- which is typically the name of the blog. (Check out our entry about registering blog titles as trademarks.) (4) You should register the blog name or words in standard character format. We don't think there's much sense in registering a stylized version of the name -- especially because you may later change the appearance.  If you have a unique logo that differs from your name, you can register that but that should be a low business priority, at least until the online business is doing well enough to justify the $300+ registration fee.  Here's more info on registering trademarks.

How Do I Protect My Wife's Blog?

Dear Rich: My wife writes a weekly blog entry for a friend's blog which is syndicated on blogger. Her articles are well received and she has subsequently submitted different items to different trade magazines for potential publication. She currently receives no residual ad revenue from the blog's 'owner'. Should we separately 'trademark' or otherwise protect her articles under her name or company name? The concern would be that the blog owner could also submit her articles or otherwise generate separate revenue stream based on them. It is an unlikely situation, but we wanted to be educated on if and/or how to protect her writing. We've been wearing our Don't Drink and Blog T-shirt for months now (not continuously, of course) and we think it's been effective keeping drunks off of Blogspot. (We also support this Busted Tees special which made us realize how close we were to being Amish). One thing for sure, don't drive and blog.
Right, you had a question. We don't think you can acquire a trademark for the blog because we assume it's your friend's blog, not your wife's. If that's not the case, and your wife is co-owner of the name, the parties can register the blog name by following these instructions. Still, that will only get you the right to stop others from using a similar blog name; it won't give you the ability to stop copying of the blog's text.
Copyright's where it's at. Your wife already has the strongest form of protection -- copyright. She gets it automatically whenever she posts an entry. She can augment her rights by filing for copyright registration. Registration has some great benefits and soon we'll be posting an article on how to register blog articles (though this entry may help, for now). Assuming there is no written agreement to the contrary, your wife owns the copyright in whatever she creates. She impliedly gives her consent for publication in the blog, but not for anything beyond that use. So, if the blog's administrator/owner uses your wife's entries for some other purpose, your wife can legally prevent that use if she chooses to flex her copyright muscles. For the future, perhaps she may want to create a simple agreement explaining how any uses are to be handled -- that is what can be reproduced by the blog owner and her compensation for that use.

One More Time: How to Register a Blog Name

Charles Dickens:
The world's first blogger?

Dear Rich: I read your entry on whether you can register a blog name as a trademark. It's helpful but doesn't really explain how to register the name. Can you provide a step-by-step explanation for registering a blog name at the USPTO? It would be much appreciated. The Dear Rich Staff is here to serve. We posted this article explaining the registration process.

Copyright My Blog

Dear Rich: I would like to copyright my blog content and title. I'm not sure the difference between patent, copyright, and trademark. Which is most appropriate? First, you can eliminate patents from consideration as they deal with inventions and designs (The distinction is explained here).
As for trademarks and copyrights ... You can protect your blog's title by registering it with the USPTO. If it qualifies, you will be able to stop other blogs and related publications from using a similar title. (You can read more about blog trademarks here.) As for copyright, as Dear Rich readers know, your content is protected under copyright automatically once you create it. You can also register your blog as an online work, which requires periodic filing of groups of new blog entries (which has some advantages but which will cost you between $35 to $45 per filing). In the event of infringement, the Dear Rich staff also recommends considering the use of DMCA takedown notices (explained here). You can also augment your blog copyright protection by following some of the suggestions posted here (where you can view more raccoon photos), or you can rely on a Creative Commons license, by following the suggestions here).  Wow, all that linking and reading has got us exhausted.