Hockey wrote:I have heard that if I wanted to trademark a name I could do so by writting a letter to myself thus proving I was first to get there...
By writing a letter to myself, I mean sending it through the postal service so it's basically timestamped and legitimate in court...
Wrong.
That action is called "The poor man's copyright", and is for
copyright claims. Trademark claims do not work the same way. Notably, if someone else (Pepsi?) went through the trouble of registering their trademark through the trademark office, your "poor man's copyright" wouldn't hold any weight in a court claim - even if you did it 'first'.
Even more importantly, trademark has the concept of public use. So for example, even if you registered your trademark (but did not use it, nor defend it), the court could claim that the widespread public use of that mark by a competitor was the clear and recognized holder.
Its very messy, and thats not all. In addition, to register a trademark, you have to choose a category in which to do business. (You can in fact choose multiple, but that costs extra). If you chose electronics, and later went into music sales, you could be sued by another (arguably less well-known) trademark holder in the music business. Thats whats happening with Apple Computers v. Apple Music. (The full details would take whole books to explain, so I'm seriously not doing it justice. Regardless, the principle matters).
IF, and only if, you really want a trademark on your name, then the proper method is to do a trademark search (
TESS will be a solid start). Then search through trade publications, news articles, and so forth. This is called "due dilligence", and you can and probably should hire someone to do it for you (a lawyer).
Then you have to file your trademark application with the Federal Government. That costs money, takes time, and is often rejected. The official "party line" is that well-researched applications are rarely rejected, but I've heard numbers as harsh as less than 10% of applications make it through. Your mileage may vary, and each new attempt costs you.
It is important to note that unlike copyright, in which you can grant specific use, and unlike patents, in which you can selectively enforce them, in trademarks, you have to be eternally vigilent. So if you have a competitor that starts doing business as YouCo, and you've been using that trademark, you can lose it if you do not enforce it.
Hockey wrote:Smarty for instance was trademarked...but how...it's a common name which I am sure someone else has used before them...so is it only not allowed to start a PHP library with the name Smarty???
Actually, they do
not have a trademark on the term Smarty. They claim so, and hope by doing so, and consistently enforcing it, that it will obtain trademark status by default. ie, if I were to try to register that trademark, they could attempt to defend against my trademark by saying that they've been actively using it for years. Then the court will be forced to weigh not only my application (which clearly didnt do a solid tm search prior to submission), but also the general use in the industry, the timing of both, and the likely impression by the general public.
If you do a search on "Smarty" at TESS, you will see that they have not in fact received a trademark.
Trademarks are an incredibly difficult legal status to obtain, maintain, and enforce, and I highly recommend that you get a lawyer if you want to persue it. If you can't afford a lawyer, I virtually guarantee you cannot effectively keep and maintain your trademark.