FOR STARTING A NEW BUSINESS
The following is provided as a rough guide on issues dealing with intellectual property, i.e. patents, trademarks, and copyrights, for someone starting a new business. For a more comprehensive review of the general details on intellectually property, please refer to other sources such as the material provided by the Oklahoma Small Business Development Center.
Before selecting a new name for a company, it is very important to do some initial research. The first thing to consider is whether someone already has the rights granted to them by the United States Patent and Trademark Office (“USPTO”) to the name you are considering. Head, Johnson, Kachigian & Wilkinson, PC provides trademark searching services covering both federal registrations and state registrations for all fifty states. When conducting the search for trademarks, it is important to include variations of spelling, plurals, and other marks that may sound similar although they are spelled differently. Even if the name you are contemplating is somewhat different, it is important to select a name that does not sound or even look similar to a preexisting name.
The second step is to search the Internet for any other companies using this same name. Keep in mind that those other companies may not have applied for or received a trademark from the USPTO. A quick search over the Internet will likely suffice. However, depending upon how much time and interest you are putting into your name, the more research the better. Also, determine if you can obtain a website for the name you are considering.
The third step is going to the Oklahoma Secretary of State to determine if anyone has registered the name you are considering or one similar to it as a corporation. Keep in mind that registering with the Secretary of State as a corporation does not mean that you are granted the rights to that name in any fashion. The Secretary of State grants names for corporations without cross-referencing any state or federal trademarks or any other resources.
A final note regarding trademarks: if you have chosen a name that is descriptive of the goods or services that your product is going to provide, you are probably okay to use the name. For example, if you are going to open up a car wash and you want to call it CAR WASH, there is no reason that you cannot use those terms in the name you are considering. In other words, descriptive terms are always available for your use without almost any exceptions. To determine if the name you are considering is possibly descriptive, listen to the entire phrase and determine whether it describe the goods or service that you will associate with it. For example, if you choose the name REALLY COOL for a car wash, REALLY COOL does not describe a car wash, nor would anyone know that it means car wash in and of itself. This example would be one that you should investigate to ensure that no one else is using it. When choosing a descriptive name, bear in mind that such names are not actually trademarks. In other words, just as someone else cannot stop you from using a descriptive name, you cannot stop others from using the same name if it is descriptive of their goods and services.
One of the most important things to remember about copyrights, if you are in a business where you are providing original materials, i.e. creating websites, graphic art, music, or any other type of expression of originality, is to make an agreement with the person you are working with as to who should will retain the rights to these works. Very simply, if you desire to have someone work for you and you want the rights to the product of that work, you must put your agreement in some form of writing. Likewise, if you are doing work for someone else and you want to make sure that they understand that you want to retain the rights, you should put that in some form of writing as well.
Copyrights can be for things as simple as restaurant menus to things as complex as computer software. The important thing to remember is to have an agreement up front with the person you are doing business with on who retains the rights in the future. It is a wise idea to review the “work-for-hire” principles, such as outlined the material provided by Oklahoma Small Business Development Center. In addition, you may want to refer to the Library of Congress for more copyright information.
Although in your new business you may think that you have an idea for which you may receive a patent, it is always a good idea to investigate whether you may obtain a patent on anything that you have created that may be new or unobvious to what has been done in the past. You can do a preliminary search yourself using the Internet to see if anyone has received a patent on an idea. Additionally, Head, Johnson, Kachigian & Wilkinson, P.C. provides patent search services, along with an analysis of the patentability of your idea. When starting a new business, having a patent that grants you the exclusive rights to make, use, or sell a product can be powerful weapon and asset to your company. A great example is Sylvan Goldman who had invented the shopping cart in Oklahoma. Needless to say, everyone that goes into the grocery store expects to see a grocery cart. Sylvan Goldman received his patent for this idea in 1947, which allowed him to make a large amount of money in his enterprise. Another example is the parking meter, which was also invented in Oklahoma. These examples illustrate that often when starting a new business, you may see a need for a new solution to an existing problem and you may come up with an idea for which you may receive a patent. Even if you believe someone may have previously thought of your idea, it is worthwhile to search the USPTO website.