Your constant use of an unregistered mark gains trademark
status through the years. I had an interesting trademark case a few years back
when someone stole my Homemade Money book title and applied it to a
sleazy MLM magazine. The publisher hadn't yet applied for a trademark, so my
attorney, Mary Helen Sears, was able to stop him from using this name. Because
it has been so closely identified with my name since 1984, she was able to prove
that my personal reputation would have been damaged if someone had seen this
name on their magazine. Ms. Sears sent a powerfully-worded series of letters
that convinced the publisher he had to stop using my book's title—or else.
As Ms. Sears explained, "Because it is strongly associated with Barbara
Brabec in the minds of persons engaged in, or interested in engaging in,
home-based business enterprises, the term 'Homemade Money' has acquired a
secondary meaning, not only as the identification of a book that has the
reputation of being the handbook and primer in how to start, maintain and
conduct a home-based business, but as the trademark and service mark for
educational materials relating to home-based business, and for educational and
informational activity of all types in regard to such business." Thus,
anyone using this phrase for their own profit would be in direct violation of
trademark law 15 U.S.C. 1125(a), and I could take appropriate legal action
against them.
_________
Mary Helen Sears has
been in private law practice in Washington, D.C. since 1961. The M. H. Sears Law
Firm is mainly devoted to patents, copyrights, trademarks and related matters.
