-Yes, no reason we can't use a non-registered trademark... what's it -called,
-common law or something like that?
Ok, trademark (like other intellectual property issues) is confused by the
fact that the US is a federal government. That is, you have states, and a
federal government, each of which claims authority to do the same things.
Each state has its own IP law - which is 95% similar to its neighbors.
Some state law is preempted by federal law.
Some state and federal law is concurrent (coexisting and equally
authoritative).
Trade Marks _can arise merely by open and notorious use, i.e. by custom. This
is NOT the type of protection a good lawyer recommends - its there in theory,
but you have to prove it in practice, there are no formalities... in practice,
people forget, die, lie, cheat, steal. Formal defenses, again, are easier to
prove and thus more effective, than practical ones.
If you just start using openKard and say it is a trade mark you have a really
weak protection - better than none, but still its not good lawyering. I
cannot, in good conscience, recommend it.
I realise the registration form is a pain to fill out and the $245 (or
whatever the filing fee is) is a lot - so if you want to go with simply using
common law trade mark I understand but it is not good counsel (nor is it
malpractice... only in law can you have 'bad advice' which is not malpractice)
My advice: figure out a way to formally actually register the mark... use
common law protection only if there is no other alternative.
Also: you can trademark pictures, names, phrases, most anything, though you do
have to actually use the thing to identify your product.
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