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Basic Facts About Registering A Trademark, Part 5
Part 5 of 5 Statement of Use Under 37 CRF 2.88 With Declaration to the Assistant Commissioner for Trademarks Applicant Name: Notice of Allowance Issue Date: Applicant requests registration of the above identified trademark/service mark in the U.S. Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. 1051 et. seq., as amended). Three specimens per class showing the mark as used in commerce are submitted with this statement.  Check here if a Request to Divide under 37 C.F.R. 2.87 is being submitted with this statement. Applicant is using the mark in commerce on or in connection with the following goods/services: (check one)  Those goods/ services identified in the Notice of Allowance in this application.  Those goods/services identified in the Notice of Allowance in this application except: (identify goods/services to be deleted from application) Date of first use of mark in commerce that the U.S. Congress may regulate: Specify type of commerce (e.g. interstate, between the United States and a specified foreign country): The undersigned, being hereby warned that willful and false statements and the like so made are punishable by fine, imprisonment, or both under 18 U.S.C. 1001, and that such willful false statements may jeopardize the validity of the application or any resulting registration, declares that he/she is properly authorized to execute this Statement of Use on behalf of the applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be registered; the trademark/service mark is now in use in commerce; and all statements made of his/her own knowledge are true and all statements made on information and belief are believed to be true. ________________________________ ______________________________ Date ..._________ ________________________ (Typed or printed name of person mailing (Signature of person mailing paper & fee) paper & fee) This form ought to take 15 minutes to complete, including time required for understanding instructions, gathering necessary information, record keeping and actually providing the information. Any comment on the amount of time you require to complete this form should be sent to: The Office of Management and Organization U.S. Patent and Trademark Office U.S. Department of Commerce Washington, DC 20231 and to: The Office of Information and Regulatory Affairs Office of Management and Budget Washington, DC 20503 Do not send forms to either of these addresses. Trademark Processing Fees 361 2.6 (a) (1) Application for registration, per class .................................. $245.00 362 2.6 (a) (2) Filing an Amendment to Allege Use Under 1 (c), per class 363 2.6 (a) (3) Filing a Statement of Use under 1 (d) (1), per class 100.00 364 2.6 (a) (4) Filing a Request for a Six Month Extension of Time for Filing a Statement of Use under 1 (d) (1) per class 100.00 365 2.6 (a) (5) Application for renewal, per class 300.00 366 2.6 (a) (6) Additional fee for late renewal, per class 100.00 367 2.6 (a) (7) Publication of mark under 12 (c), per class 100.00 368 2.6 (a) (8) Issuing new certificate of registration 100.00 369 2.6 (a) (9) Certificate of Correction 100.00 370 2.6 (a) (10) Filing disclaimer to registration 100.00 371 2.6 (a) (11) Filing amendment to registration 100.00 372 2.6 (a) (12) Filing 8 affidavit, per class 100.00 373 2.6 (a) (13) Filing 15 affidavit, per class 100.00 374 2.6 (a) (14) Filing combined sec. 8 and 15 affidavit, per class 200.00 375 2.6 (a) (15) Petition to the Commissioner 100.00 376 2.6 (a) (16) Petition for cancellation, per class 200.00 377 2.6 (a) (17) Notice of opposition, per class 200.00 378 2.6 (a) (18) Ex parte appeal, per class 200.00 379 2.6 (a) (19) Dividing an application, per new application (file wrapper) created 100.00 Trademark Service Fees 461 2.6 (b) (1) (i) Printed copy of each registered mark, regular service $ 3.00 462 2.6 (b) (1) (ii) Printed copy of each registered mark, overnight delivery to PTO box or overnight fax 6.00 463 2.6 (b) (1) (iii) Printed copy of each registered mark ordered via expedited local service 20.00 464 2.6 (b) (4) (i) Certified copy of registered mark with title and/or status, regular service 10.00 465 2.6 (b) (4) (ii) Certified copy of registered mark, with title and/or status, expedited local service 20.00 466 2.6 (b) (2) (i) Certified or uncertified copy of trademark application as filed, regular service 30.00 467 2.6 (b) (2) (ii) Certified or uncertified copy of trademark application as filed, expedited local service 30.00 468 2.6 (b) (3) Certified or uncertified copy of trademark related file wrapper and contents 50.00 469 2.6 (b) (5) Certified or uncertified copy of trademark document, unless otherwise provided 25.00 470 2.6 (b) (7b) For assignment records, abstracts of title and certification per registration 25.00 475 1.19 (g) Comparing and certifying copies, per document, per copy 25.00 480 2.6 (b) (9) Self-service copy charge per page 0.25 481 2.6 (b) (7) Recording trademark assignment, agreement or other paper, first mark per document 40.00 482 2.6 (b) (6) For second and subsequent marks in the same document 25.00 484 2.6 (b) (10) Labor charges for services, per hour or fraction thereof 30.00 485 2.6 (b) (11) Unspecified other services At cost 488 2.6 (b) (8) Each hour of X-SEARCH terminal session time 40.00 490 1.24 Trademark coupons 3.00

Basic Facts About Registering A Trademark, Part 1
BASIC FACTS ABOUT REGISTERING A TRADEMARK Part 1 of 5   What is a Trademark? A trademark is either a word, phrase, symbol, or design, or combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods or services of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. Throughout this booklet the terms 'trademark' and 'mark' are used to refer to both trademarks and service marks, whether they're word marks or other types of marks. Normally, a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services. A trademark is different from a copyright or a patent. A copyright protects an original artistic or literary work; a patent protects an invention. For copyright information, call the Library of Congress at (202) 707-3000. Establishing Trademark Rights Trademark rights arise from either (1) actual use of the mark, or (2) the filing of a proper application to register a mark in the Patent and Trademark Office (PTO) stating that the applicant has a bona fide intention to use the mark in commerce regulated by the U.S. Congress. (See below, under 'Types of Applications,' for a discussion of what is meant by the terms 'commerce' and 'use in commerce.') Federal registration is not required to establish rights in a mark, nor is it required to begin use of a mark. However, federal registration can secure benefits beyond the rights acquired by merely using a mark. For example, the owner of a federal registration is presumed to be the owner of the mark for the goods and services specified in the registration, and to be entitled to use the mark nationwide. There are two related but distinct types of rights in a mark: the right to register and the right to use. Generally, the first party who either uses a mark in commerce or files an application in the PTO has the ultimate right to register that mark. The PTO's authority is limited to determining the right to register. The right to use a mark can be more complicated to determine. This is particularly true when two parties have begun use of the same or similar marks without knowledge of one another and neither has a federal registration. Only a court can render a decision about the right to use, such as issuing an injunction or awarding damages for infringement. It should be noted that a federal registration can provide significant advantages to a party involved in a court proceeding. The PTO cannot provide advice concerning rights in a mark; only a private attorney can. Unlike copyrights or patents, trademark rights can last indefinitely if the owner continues to use the mark or identify its goods or services. The term of a federal trademark registration is 10 years, with 10-year renewal terms. However, between the fifth and sixth year after the date of initial registration, the registrant must file an affidavit setting forth certain information to keep the registration alive. If no affidavit is filed, the registration is canceled. Types of Applications for Federal Registration An applicant may apply for federal registration in three principle ways: An applicant who has already commenced using a mark in commerce may file based on that (a use application). An applicant who has not yet used the mark may apply based on a bona fide intention to use the mark in commerce (an intent-to-use application). For the purpose of obtaining federal registration, commerce means all commerce that may lawfully be regulated by the U.S. Congress-for example, interstate commerce or commerce between the United States and another country. The use in commerce must be a bona fide use in the ordinary course of trade, and not made merely to reserve a right in a mark. Use of a mark in promotion or advertising before the product or service is actually provided under the mark on a normal commercial scale does not qualify as use in commerce. Use of a mark in purely local commerce within a state also fails to qualify as use in commerce. If an applicant files based on a bona fide intention to use in commerce, the applicant will have to use the mark in commerce and submit an allegation of use to the PTO before the PTO will register the mark (see Part 3). Additionally, under certain international agreements, an applicant from outside the United States may file in the United States based on an application or registration in another country. For information regarding applications based on international agreements, please call the information number provided in Part 2. A U.S. registration provides protection only in the United States and its territories. If the owner of a mark wishes to protect a mark in other countries, the owner must seek protection in each country separately under the relevant laws. The PTO cannot provide information or advice concerning protection in other countries. Interested parties may inquire directly in the relevant country, in its U.S. offices, or through an attorney. Who May File an Application? The application must be filed in the name of the owner of the mark-usually an individual, corporation, or partnership. The owner of a mark controls the nature and quality of the goods or services identified by the mark. See below in the line-by-line instructions for information about who must sign the application and other papers. The owner may submit and prosecute its own application for registration, or may be represented by an attorney. The PTO cannot help select an attorney. Foreign Applicants Applicants not living in the United States must designate in writing the name and address of a domestic representative-a person residing in the United States 'upon whom notices of process may be served for proceedings affecting the mark.' The applicant may do so by submitting a statement that the named person at the address indicated is appointed as the applicant's domestic representative under 1 (e) of the Trademark Act. The applicant must sign this statement. This person will receive all communications from the PTO unless the applicant is represented by an attorney in the United States. Searches for Conflicting Marks An applicant is not required to conduct a search for conflicting marks prior to applying with the PTO. However, some people find it useful. In evaluating an application, an examining attorney conducts a search and notifies the applicant if a conflicting mark is found. The application fee, which covers processing and search costs, will not be refunded even if a conflict is found and the mark can't be registered. To determine whether the two marks conflict, the PTO determines whether there would be likelihood of confusion-that is, whether relevant consumers would be likely to associate the goods or services of one party with those of the other party as a result of the use of the marks at issue by both parties. The principal factors to be considered in reaching this decision are the similarity of the marks and the commercial relationship between the goods and services identified by the marks. To find a conflict, the marks need not be identical, and the goods and services do not have to be the same. The PTO does not conduct searches for the public to determine if a conflicting mark is registered, or is the subject of a pending application, except as just noted, when acting on an application. However, you can get this same type of information in a variety of ways: Perform a search in the PTO public search library, located on the second floor of the South Tower Building, 2900 Crystal Dr., Arlington, VA 22202. Visit a patent and trademark depository library (at locations listed in Part 4). Go to either a private trademark search company or an attorney who deals with trademark law. The libraries in the first two entries have CD-ROMs containing the trademark database of registered and pending marks. The PTO cannot provide advice about possible conflicts between marks. Laws & Rules Governing Federal Registration The federal registration of trademarks is governed by the Trademark Act of 1946, as amended, 15 U.S. C. 1051 et seq.; the Trademark Rules, 37 C.F.R. Part 2; and the Trademark Manual of Examining Procedure (2d. Ed. 1993). Other Types of Applications In addition to trademarks and service marks, the Trademark Act provides for federal registration of other types of marks, such as certification marks, collective trademarks and service marks, and collective membership marks. These are relatively rare. For forms and information regarding registration of these marks, please call the appropriate trademark information number, indicated below. Where to Send Application and Correspondence The application and all other correspondence should be addressed to The Assistant Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3513 The initial application should be directed to 'Box NEW APP/FEE.' An AMENDMENT TO ALLEGE USE should be directed to 'Attn. AAU.' A STATEMENT OF USE or REQUEST FOR AN EXTENSION OF TIME TO FILE A STATEMENT OF USE should be directed to 'Box ITU/ Fee.' The applicant should indicate his or her company's telephone number on the application form. Once a serial number is assigned to the application, the applicant should refer to the serial number in all written and telephone communications concerning the application. It's advisable to submit a stamped, self-addressed postcard with the application specifically listing each item in the mailing-that is, the written application, the drawing, the fee, and the specimens (if appropriate). The PTO will stamp the filing date and serial number of the application on the postcard to acknowledge receipt. This will help the applicant if any item is later lost or if the applicant wishes to inquire about the application. The PTO will send a separate official notification of the filing date and serial number for every application about two months after receipt....

Basic Facts About Registering A Trademark, Part 3
BASIC FACTS ABOUT REGISTERING A TRADEMARK Part 3 of 5   FILING REQUIREMENTS Before completing an application, read the instructions carefully and study the examples provided. Errors or omissions may result in the denial of a filing date and the return of application papers, or the denial of registration and forfeiture of the filing fee. To receive a filing date, the applicant must provide the following: Filled-out application form Drawing of the mark on a separate piece of paper Required filing fee (see end of this document for fee information) Three specimens for each class of goods or services-if application is based on prior use of the mark in commerce (The specimens must show actual use of the mark with the goods or services, and may be identical or examples of three different uses showing the same mark.) 1. Written Application Form (PTO Form 1478) The application must be in English. A separate application must be filed for each mark the applicant wishes to register. For more than one version of the same mark, a separate application must be filed for each version. PTO Form 1478 may be used for a trademark or service mark application, and may be photocopied for your convenience. Here are line-by-line instructions for filing PTO Form 1478 (Trademark/Service Mark Application, Principal Register, With Declaration), as shown in Part 4: Space 1 -- The Mark Indicate the mark (for example, 'Theorytec' or 'Pinstripes and Design'). This should agree with the mark shown on the drawing page. If a discrepancy exists between the mark described in the written application and the mark displayed in the drawing, the drawing controls. Space 2 -- Classification It's not necessary to fill in this box. The PTO will determine the proper International Classification based on the identification of the goods and services in the application. However, an applicant who knows the International Class number(s) for the goods and services may place the number(s) in this box. If the PTO determines that the goods and services listed fall into more than one class, the PTO will notify the applicant during examination of the application, and the applicant will have the opportunity to pay the fees for any additional classes or to limit the goods and services to one or more classes. Space 3 -- The Owner of the Mark The name of the mark's owner must be entered in this box. If the application is not filed in the name of the mark's owner, the application will be void and the applicant will forfeit the filing fee. The owner of the mark is the party who controls the nature and quality of the goods sold, or services rendered, under the mark. The owner may be an individual, a partnership, a corporation, or an association or similar firm. If the applicant is a corporation, the applicant's name is the name under which it is incorporated. If the applicant is a partnership, the applicant's name is the name under which it is organized. Space 4 -- The Owner's Address Enter the applicant's business address. If the applicant is an individual, enter the applicant's business or home address. Space 5 -- Entity Type and Citizenship/Domicile The applicant must check the box that indicates the type of entity applying. In addition, in the blank following the box, the applicant must specify one of the following: Space 5 (a) -- for an individual, the applicant's national citizenship Space 5 (b) -- for a partnership, the names and national citizenship of the general partners and the state (if a U.S. partnership) or country (if a foreign partnership) where the partnership is organized Space 5 © -- For a corporation, the state (if a U.S. corporation) or country (if a foreign corporation) of incorporation Space 5 (d) -- for another type of entity, the nature of the entity and the state (if a U.S. entity) or country (if a foreign entity) where it is organized Space 6 -- Identification of the Goods and/or Services In this blank, the applicant must state the specific goods and services for which registration is sought and with which the applicant has actually used the mark in commerce or-in the case of an 'intent-to-use' application-has a bona fide intention to use the mark in commerce. Use clear and concise terms specifying the actual goods and services by their common commercial names. A mark can be registered only for specific goods and services. The goods and services listed will establish the scope of the applicant's rights in the relevant mark. The goods and services listed must be the applicant's actual 'goods in trade' or the actual services the applicant renders for the benefit of others. Use language that would be readily understood by the general public. For example, if the applicant intends to use the mark to identify candy, word processors, baseballs and baseball bats, travel magazines, dry cleaning services, or restaurant services, the identification should clearly and concisely list that. The applicant should not use indefinite terms, such as accessories, components, devices, equipment, food, materials, parts, or services listed by their common commercial name(s). Note that the terms used in the classification listing are generally too broad. Do not use those terms by themselves. The applicant must be very careful when identifying goods and services. Because the filing of an application establishes certain presumptions of rights as of the filing date, the application may not be amended later to add any products or services not within the scope of the identification. For example, the identification of 'clothing' could be amended to 'shirts and jackets,' which narrows the scope, but could not be amended to 'retail clothing store services,' which would change the scope. Similarly, 'physical therapy services' can't be changed to 'medical services,' because this would broaden the scope of the identification. Also, if the identification includes a trade channel limitation, deleting that limitation would broaden the scope of the identification. The identification of goods and services must not describe the mode of the mark's use, such as on labels, stationery, menus, signs, containers, or advertising. There's another place on the application, called the 'method-of-use clause,' for this kind of information. (See information below, under Space 7[a], fourth blank.) For example, in the identification of goods and services, the term 'advertising' is usually intended to identify a service rendered by advertising agencies. Moreover, 'labels,' 'menus', 'signs' and 'containers' are specific goods. Thus, if the identification indicates ' menus,' it can't be amended to 'restaurant services.' Similarly, if the goods are identified as 'containers or labels for jam,' the identification can't be amended to 'jam.' Note: If nothing appears in this blank, or if the identification does not identify any recognizable goods or services, the application will be denied a filing date and returned to the applicant. For example, if the applicant specifies the mark itself, or wording such as 'company name,' 'corporate name,' or 'company logo' and nothing else, the application will be denied a filing date and returned to the applicant. If the applicant identifies the goods and services as just 'products' or 'services' the application will be denied a filing date and returned to the applicant. Space 7 -- Basis for Filing The applicant must check at least one of the four boxes to specify a basis for filing the application. The applicant should also fill in all blanks that follow the checked box(es). Usually an application is based on either (1) use of the mark in commerce (the first box) or (2) a bona fide intention to use the mark in commerce (the second box). You may not check both the first and second box. If both boxes are checked, the PTO will not accept the application and will return it. If an applicant wishes to apply to register a mark for certain goods and services already using the mark in commerce and also for other goods and services based on future use, separate applications must be filed to separate the relevant goods and services from each other. Space 7 (a). If the applicant is using the mark in commerce in relation to all of the goods and services listed in the application, check this first box and fill in the blanks. In the first blank, specify the date the trademark was first used to identify the goods and services in a type of commerce that may be regulated by Congress. In the second blank, specify the type of commerce, specifically a type of commerce which may be regulated by Congress, in which the goods were sold or shipped, or the services were rendered. (See Part 1 for the meaning of 'use in commerce.') For example, indicate 'interstate commerce' (commerce between two or more states) or commerce between the United States and a specific foreign country-for example, 'commerce between the United States and Canada.' In the third blank, specify the date that the mark was first used anywhere to identify the goods or services specified in the application. This date will be the same as the date of first use in commerce unless the applicant made some use-for example, within a single state-before the first use in commerce. In the fourth blank, specify how the mark is placed on the goods or used with the services. This is referred to as the 'method-of-use clause' and should not be confused with the identification of the goods and services described under Space 6. For example, in relation to goods, state, 'The mark is used on labels affixed to the goods,' or 'The mark is used on containers for the goods,' whichever is accurate. In relation to services, state, 'The mark is used in advertisements for the services.' Space 7 (b). If the applicant has a bona fide intention to use the mark in commerce in relation to the goods or services specified in the application, check the second box and fill in the blank. The applicant should check this box if the mark has not been used at all or if the mark has been used on the specified goods or services only within a single state. In the blank, state how the mark is intended to be placed on the goods or used with the services. Example: For goods, state, 'The mark will be used on labels affixed to the goods,' or 'The mark will be used on containers for the goods,' whichever is accurate. For services, state, 'The mark will be used in advertisements for the services. Spaces 7 © and (d). These spaces are usually used only by applicants from foreign countries who are filing in the United States under international agreements. These applications are less common. For further information about treaty-based applications, call the trademark information number listed in Part 2, or contact a private attorney. Space 8 -- Verification and Signature The applicant must verify the truth and accuracy of the information in the application and must sign the application. The declaration in Space 8, on the back of the form, is intended for this purpose. If the application is not signed, the application will not be granted a filing date and will be returned to the applicant. If the application is not signed by an appropriate person, the application will be found void and the filing fee will be forfeited. Therefore, it's important that the proper person sign the application. If the applicant is an individual, that individual must sign. If the applicant is a partnership, a general partner must sign. If the applicant is a corporation, association, or similar organization, one of its officers must sign. An officer is a person who holds an office established in the articles of incorporation or the bylaws. Officers may not delegate this authority to non-officers. If the applicants are joint applicants, all joint applicants must sign. The person who signs the application must indicate the date signed, provide a telephone number to be used if it's necessary to contact the applicant, and clearly print or type his or her name and position. 2. The Drawing Page Every application must include a single drawing page. If there's no drawing page, the application will be denied a filing date and returned to the applicant. The PTO uses the drawing to file the mark in the PTO search records and to print the mark in the Official Gazette and on the registration. The drawing must be on pure white, durable, non-shiny paper that is 8 1/2 inches (21.59 cm) wide and 11 inches (27.94 cm) long. There must be at least a one-inch (2.54-cm) margin on the sides, top, and bottom of the page, and at least one inch between the heading and the display of the mark. At the top of the drawing must be a heading, listing on separate lines the applicant's complete name, address, goods and services specified in the application, and (in applications based on use in commerce) the date of first use of the mark and the date of first use of the mark in commerce. This heading should be typewritten. If the drawing is in special form, the heading should include a description of the mark's essential elements. The drawing of the mark should appear at the center of the page. It may be typewritten or appear in special form. If the mark includes words, numbers or letters, the applicant can usually elect to submit either a typewritten or a special-form drawing. To register a mark consisting only of words, letters, or numbers, without indicating any particular style, or design, provide a typewritten drawing. In the typewritten drawing, the mark must be typed entirely in CAPITAL LETTERS, even if the mark, as used, includes lower-case letters. Use a standard typewriter or a font in the same size and style as that of a standard typewriter. To indicate color, use color linings. The appropriate lining should appear in the area where the relevant color would appear. If the drawing is lined for color, insert a statement in the written application to indicate so-for example, 'The mark is lined for the colors red and green.' A plain black-and-white drawing is acceptable even if the mark is used in color. Most drawings do not indicate specific colors. Be careful in preparing the drawing. Although it may be possible to make some minor changes, the rules prohibit any material change to the drawing of the mark after filing. To register a word mark in the form in which it's actually used or intended to be used in commerce, or any mark including a design, submit a special-form drawing. In a special-form drawing, the mark must be no larger than 4 inches by 4 inches (10.16 by 10.16 cm). If the drawing of the mark is larger than this, the application will be denied a filing date and returned to the applicant. In addition, the drawing must appear only in black and white, with every line and letter black and clear. No color or gray is allowed. Do not combine typed matter and special form in the same drawing. The drawing in special form must be a substantially exact representation of the mark as it appears on the specimens. The applicant may apply to register any portion of a mark consisting of more than one element, provided that the mark displayed in the drawing creates a separate impression apart from other elements it appears with on the specimens. For example, it's generally possible to register a word mark by itself even though the specimen shows the word 'mark' used in combination with a design or a part of a logo. Do not include non-trademark matter in the drawing, such as informational matter that may appear on a label. In the end, the applicant must decide exactly what to register and in what form. The PTO considers the drawing 'controlling' when determining exactly what mark the application covers. 3. FEES Filing Fee The application filing fee is $245 for each class of goods or services listed. At least $245 must accompany the application. Fee increases, when necessary, usually take effect on October 1 of any given year. Please call the general information number listed in Part 2 for up-to-date fee information if filing after September 1995. The PTO receives no taxpayer funds; its operations are supported entirely from fees paid by applicants and registrants. Additional Fees Related to Intent-to-Use Applications In addition to the application filing fee, applicants who base their filing on a bona fide intention to use a mark in commerce must submit a fee of $100 for each class of goods or services in the application, when filing any of the following : Amendment to Allege Use Statement of Use Request for an extension of time to file a Statement Of Use Form of Payment All payments must be made in U.S. currency, by check, post office, money order, or certified check. Personal or business checks may be submitted. Make checks and money orders payable to the Assistant Commissioner for Trademarks. Fees are not refundable. 4. specimens required to show use of the mark in commerce When to File the Specimens If the applicant has already used the mark in commerce and bases the filing on use in commerce, he or she must submit three specimens per class showing use of the mark in commerce with the application. If, instead, the application is based on a bona fide intention to use the mark in commerce, the applicant must submit three specimens per class when filing either an Amendment to Allege Use or a Statement of Use. What to File as a Specimen The specimens must be actual samples of how the mark is being used in commerce. The specimens may be identical or examples of three different uses showing the same mark. If the mark is used on goods, examples of acceptable specimens are the tags or labels attached to the goods, containers for the goods, displays associated with the goods, or photographs of the goods showing use of the mark on the goods themselves. If it's impractical to send an actual specimen because of its size, photographs or other acceptable reproductions that show the mark on the goods or packaging for the goods must be furnished. Invoices, announcements, order forms, bills of lading, leaflets, brochures, catalogs, publicity releases, letterhead, and business cards generally are not acceptable specimens. If the mark is used for services, examples of acceptable specimens are signs, brochures, advertisements, business cards or stationery that shows the mark in connection with the services, or photographs that show the mark as used in the rendering or advertising of the services. In the case of a service mark, the specimens must either show the mark and include some clear reference to the type of services rendered under the mark in some form of advertising, or show the mark as it's used in the rendering of the service-for example, on a storefront or the side of a delivery or service truck. Specimens may not be larger than 8 1/2 inches by 11 inches (21.59 by 27.94 cm) and must be flat. Smaller specimens, such as labels, may be stapled to a sheet of paper labeled 'SPECIMENS.' A separate sheet can be used for each class. Additional Requirements for Intent-To-Use Applications An applicant who files an application based on the bona fide intention to use a mark in commerce must make use of the mark in commerce before the mark can register. After use in commerce begins, the applicant must submit: Three specimens evidencing use, as just discussed A fee of $100 per class of goods or services in the application Either (a) an Amendment to Allege Use if the application has not yet been approved for publication (use PTO Form 1579) or (b) a Statement of Use if the mark has been published and the PTO has issued a Notice of Allowance (use PTO Form 1580). If the applicant makes no use of the mark in commerce within six months of the Notice of Allowance, the applicant must file a Request for an Extension of Time to File a Statement of Use, or the application is abandoned. (Use PTO Form 1581, which is intended for this purpose only.) See the instructions and information on the back of the forms. The previous information about specimens, identifications of goods and services, and dates of use is also relevant to filing an Amendment to Allege Use or Statement of Use. Failing to file the necessary papers in proper form within the time provided may result in abandonment of the application....

Basic Facts About Registering A Trademark, Part 4
BASIC FACTS ABOUT REGISTERING A TRADEMARK Part 4 of 5   PATENT AND TRADEMARK OFFICE SERVICES Trademark Assistance Center The Patent and Trademark Office was established to provide service to trademark applicants, registrants, and the general public. Many PTDLs have on file all full-text patents issued since 1790, trademarks published since 1872, and select collections of foreign patents. All PTDLs have the patent and trademark sections of the Official Gazette of the U.S. Patent and Trademark Office. The full-text utility and design patents are distributed numerically on 16-mm microfilm, and plant patents on color microfiche. Patent and trademark search systems are available on CD-ROM at all PTDLs to enhance access to the information found in patents, and trademarks searches can be conducted through the numerically arranged collections. All information is available for use by the public free of charge. Facilities for making paper copies of patent and trademark information are generally provided for a fee. STATE Name of Library Telephone Contact Alabama Auburn University Libraries (205) 844-1747 Birmingham Public...g (Class 35) August 27, 1990 First Use in Commerce: Magazines (Class 16) January 15, 1992 Consulting (Class 35) August 27, 1990 Design: A zebra Sample Drawing-Typewritten 8 1/2" x 11" (21.6 cm x 27.9 cm) Applicant's Name: A-OK Software Development Group Applicant's Address; 100 Main Street, Anytown, MO 12345 Goods: Computer software for analyzing statistics Date of First Use: Intent to Use Application Date of First Use in Commerce: Intent to Use Application Theorytec Sample Specimen for Goods (Issue of Magazine) April-May 1992 $2.00 Pinstripes "The Magazine for the Business Professional" In this Issue Managing business in tough times The need for quality in everything redefines priorities Managing turned inside out Employee ideas can really count Our business report on Washington, D.C. Working together to create new markets and new jobs In business to stay Investing feature: Future outlook on futures Pinstripes forever (our humor column) Sample Specimen for Services (Advertisement) If better business management solutions are what you're after, think of Pinstripes for consulting. We'll come wherever you are to offer a wide range or consulting services for diverse industries, including high-tech fields. You'll like the results-and our competitive price. The more you get to know us, the more you'll realize that we're the best choice for consulting and can make a big difference. Call or write us. Pinstripes Inc. (123) 456-7890, 100 Main St., Anytown, MO 12345 Sample Specimen for Services (Business card showing mark and reference to service) Business Management Consultants John Doe, President 100 Main Street Anytown, MO 12345 U.S.A. (123) 456-7890 Sample Specimens for Goods (Label affixed to computer disk) Theorytec Version 5.0 A-OK Software Development Group Theorytec Version 5.0 A-OK Software Development Group Trademark/Service Mark Application, Principal Register, with Declaration   To the Assistant Commissioner for Trademarks Applicant's Name: Applicant's Business Address: Applicant's Entity Type (Check one and supply requested information) Individual-Citizen of (Country): Partnership-State where organized (country, if appropriate): Names and Citizenship (Country) of General Partners: Corporation-State (country, if appropriate) of Incorporation: Other (Specific Nature of Entity and Domicile): Goods and/or Services: Applicant requests registration of the trademark/service mark shown in the accompanying drawing in the U.S. Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. 1051 et seq., as amended) for the following goods/services (SPECIFIC GOODS AND/OR SERVICES MUST BE INSERTED HERE): Basis for Application (Check boxes that apply, but never both first and second boxes. Supply requested information related to each box checked.) [ ] Applicant is using mark in commerce on or in connection with the above identified goods/services (15 U.S.C. 1051 (a), as amended). Three specimens showing the mark as used in commerce are submitted with this application. Date of first use of the mark in commerce that the U.S. Congress may regulate (for example, interstate or between the United States and a foreign country): Specify the type of commerce (for example, interstate or between the U.S. and specified foreign country): Date of first use anywhere (the same as or before use in commerce date): Specify intended manner or mode of use of mark on or in connection with the goods/services (for example trademark is applied to labels, service mark will be advertisement): Applicant has a bona fide intention to use the mark in commerce on or in connection with the above identified goods/services and, accompanying this application, submits a certification or certified copy of a foreign accordance with 15 U.S.C. 1126 (e) as amended. Country of registration: __________________________ Registration Number: ___________________________ Note: Declaration on reverse side must be signed. Declaration The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine, imprisonment, or both, under 18 U.S.C. 1001, and that such false statements may jeopardize the validity of the application or any resulting registration, declares that he/she is properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to be owner of the trademark/service mark sought to be registered, or if the application is being filed under 15 U.S.C. 1051 (b), he/she believes applicant to be entitled to use such mark in commerce; to the best of his/her knowledge and belief, no other person, firm, corporation, or association has the right to use the above identified mark in commerce, either in the identical form thereof or in such other form, to cause confusion, or to cause mistake, or to deceive; and that all statements made of his/her own knowledge are true, and all statements made on his/her information and belief are believed to be true. _________________________________ ____________________________ Date Signature _________________________________ _____________________________ Telephone Number Print or Type Name   Instructions and Information for Applicant To receive a filing date, the application must be completed and signed by the applicant and submitted along with: The prescribed fee of $245 for each of the goods/services listed in the application; A Drawing Page displaying the mark in conformance with 37 CFR 2.52; If the application is based on use of the mark in commerce, THREE SPECIMENS (evidence) of the mark as used in commerce for each class of goods/services listed in the application. All three specimens may be in the nature of: (a) labels showing the mark, which are placed on the goods; (b) photographs of the mark as it appears on the goods; (c) brochures or advertisements showing the mark as used in connection with the services. An Application with Declaration (this form). The application must be signed for the application to receive a filing date. Only the following person may sign the declaration, depending on the applicant's legal entity: (a) the individual applicant: (b) an officer of the incorporated applicant, (c) one general partner of a partnership applicant; (d) all joint applicants. Send Application Form, Drawing Page, Fee and Specimens (if appropriate) to: Assist

... the terms trademark' and mark' are used to refer to both trademarks and service marks, whether they're word marks or other types of marks. Normally, a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services. A trademark is different from a copyright or a patent. A copyright protects an original artistic or literary work; a patent protects an invention. For copyright information, call the Library of Congress at (202) 707-3000. Establishing Trademark Rights Trademark rights arise from either (1 ) actual use of the mark, or (2 ) the filing of a proper application to register a mark in the Patent and Trademark Office (PTO) stating that the applicant has a bona fide intention to use the mark in commerce regulated by the U.S. Congress. (See below, under Types of Applications, ' for a discussion of what is meant by the terms commerce' and use in commerce.) Federal registration is not required to establish rights in a mark, nor is it required to begin use of a mark. However, federal registration can secure benefits beyond the rights acquired by merely using a mark. For example, the owner of a federal registration is presumed to be the owner of the mark for the goods and services specified in the registration, and to be entitled to use the mark nationwide. There are two related but distinct types of rights in a mark: the right to register and the right to use. Generally, the first party who either uses a mark in commerce or files ...

16 Ways To Keep A Business Alive As Commerce Goes Online
'So dawn goes down today, nothing gold can stay.' Robert Frost 'There are no more power elites.' Manuel Castels in The Information Age The painfully obvious implication of these quotes can be seen in the business world: IBM pulls its PCs out of retail venues because it no longer considers them profitable. The Wall Street Journal reported that in 1998, there were $301 billion in sales via the Internet, while the manufacturing sector did $350 billion in overall business. It took the Internet roughly 36 months to reach this figure; manufacturing needed 150 years. However, Bill Gates once warned that Microsoft's supremacy could be temporary. Nothing stays in place because there are no more power elites, pillars, safe harbors, or certainties. This leaves the question of how businesses can stay on track and out of trouble in this new and totally different environment. Here are some guidelines: 1. E-commerce isn't for every business. That might sound somewhat shocking these days, but look around. Levi-Strauss, for example, made a valiant effort to sell customized jeans over the Internet. It just didn't work. Visiting a Levi's store might be the best way to get the right fit after all, at least for now. Dry cleaners often tell customers that they can check the status of their orders via the cleaner's website. This is a good example of using technology to take a step backwards. It's high-tech, but it isn't useful. Give customers same-day service, and they don't need to check on when their clothes will be ready. 'We want to get into the E-economy,' says an insurance agency vice president. 'Why?' asks the marketing executive. 'Everybody in our office thinks it's the way to go,' the vice president responds. More nonsense. Unless there's a valid, compelling reason to commit extensive resources to E-commerce, don't jump. 2. The Web isn't the only game in town. Flip through the ads in The Wall Street Journal. A majority of them are there for one purpose: To promote a website address. This should send a message to anyone wanting to increase website traffic. Don't count on 'bookmark this page' instructions or overworked search engines to drive traffic to your site more than a few times. And don't rely on third parties to direct visitors your way. You need carefully crafted and properly funded promotions using a variety of marketing tactics and plans to keep customers coming to your website. 3. Traditional marketing channels are still valid. The aim is to get attention. The Internet makes this job more complicated, not simpler. You need to use the full range of marketing techniques. Direct mail, for example, is far from dead. In fact, it appears to be becoming even more effective as the junk moves to E-mail. What finally arrives at someone's desk or mailbox has a better chance of getting attention. The rush to fax and broadcast E-mail comes under the 'quick hit' heading. 'Don't do it right, just do it fast and cheap.' This idea is more menace than marketing. Whether it's advertising, direct mail, print newsletters, marketing brochures, or public relations, the goal is to understand customer needs and focus on them as precisely and effectively as possible. Traditional marketing channels can still do all of this quite effectively. Anyone ready to abandon these channels should realize that these are the vehicles being used to bring traffic to websites. 4. Marketing is an exercise in expert juggling. The Web hasn't changed this, although it offers brilliant new opportunities to accomplish one primary goal: Meeting the specific needs of individual customers in ways they want to be served. To accomplish this goal, even small companies need to maintain multi-faceted, integrated marketing programs consisting of self-promotion, public relations, and advertising. You need to approach customers in a number of ways simultaneously to capture their interest. This requires careful coordination and management to succeed. Placing all of a company's marketing eggs in any one basket, such as the Internet, can be dangerous. A website requires continual infusions of dollars and time, which can siphon away resources from other parts of a marketing program that includes the Internet but also recognizes the need for an integrated marketing effort. 5. Plan or perish. Strange as it might sound, although there's always value in bringing order out of chaos, a well-organized and properly implemented marketing plan isn't the complete answer. Even with the best research, things sometimes don't work out as planned. Former Coca-Cola marketing guru Sergio Zyman says that it's equally important to have a 'destination plan.' The marketing task isn't so much about answers as it is about asking the crucial questions. In many cases, the marketing plan sounds the alarm when reaching the destination appears to be in jeopardy -- allowing you to change your course. 6. Use the Web as a bellwether. Successful E-commerce seems to reflect directly what customers don't like and what they want changed. For example, selection is important to many customers. If they're shopping for luggage, they want to know what's available, and going from store to store takes too much time. Going to E-bags.com, however, is quick and easy. Traditional booksellers were shocked when websites selling books appeared. Of all products, this is the one that customers need to touch and browse, they said. Evidently all customers aren't like that, particularly when they heard, 'I'm so sorry, we don't have that book, but we'll order it for you. It will take only a week or two.' Transforming unpleasant and painful experiences is where the Internet shines. 7. All that counts is the customer. Aren't those words obvious? Not always. Consider your personal experiences with banks, bakeries, doctors' offices, restaurants, electronics stores, supermarkets -- anywhere! Do they always treat you as if you come first? Then there's that common voice-mail message, 'Leave your name and number. I'll get back to you when I can.' How about the number of unanswered voice-mail and E-mail messages? Does this sound as if the customer comes first? We tend to put our agenda first, not the customer's; we want to be in front of prospects when we're ready. Look at most sales letters and literature. Most are written from the point of view of the company doing the selling. Where's the customer? According to Forrester Research, online (or 'click') merchants generate greater customer loyalty than their bricks-and-mortar counterparts. Even if you've been buying home appliances from the same dealer for 30 years or clothing from a particular store for 15 years, those businesses probably have made no effort to understand your behavior or buying habits. But the first time you visit Landsend.com, you're viewed as an individual they want to understand. 8. Get outside of yourself. It's easy to be self-centered in business. It's also dangerous. Companies, like people, tend to think mostly about themselves -- who they are and what they want. 'Most business theories are too inward directed,' wrote Regis McKenna in Real Time. 'More attention should be paid to the external forces of change.' When auto manufacturers focused on what customers wanted, cup holders appeared in cars. Are splashy-looking computers friendlier? Ask Apple. Marketing breakthroughs are the result of looking outward. It's surprising how few companies are willing to invest in research but are willing to bet the ranch on gut instincts. Outside of the world of business, such behavior would be described as foolhardy. A sales-seminar speaker asks participants how many read USA TODAY every day. It turns out only about three in 100 do. Yet this popular publication describes new trends daily. If you're one of the 97 not reading it, ask yourself why. 9. Get rid of company mission statements and core values. If mission and vision statements, core values, and company cultures were nothing more than innocent diversions occupying the time of underworked (and overpaid) executives, they might be justifiable. Actually, they're quite destructive. They create limitations that inhibit creativity, thwart agility, and defy change. Vision statements erect barriers and create set patterns of thought and behavior. This used to be IBM's problem, and it has raised havoc at General Motors for decades. A middle manager might be concerned about whether a particular job candidate will fit into the company culture. This might be the most important reason to hire that person! 10. If you see it, don't believe it. Doppelgangers pervade business. There's a lot of talk about innovation, but talk is all it is. Business strategies are clones of the competition. Apple brings out its unique and colorful iMac, and then along comes Compaq with its knockoff. The colorful iBook laptops were quickly disdained by the competition-but almost immediately IBM offered color inserts for some of its laptops. Do customers want colorful computers? Perhaps. Just because Apple thinks so doesn't make it right for another company. Just because one business appears to have an E-commerce edge doesn't mean it's right for another company in the same industry. Seeing isn't believing. 11. Not all ideas have equal value. The Internet has truly leveled the playing field for ideas, so any thought, no matter how ignorant or ill-informed it might be, has a place on the Web. In business, critical thinking is now necessary more than ever. It's painfully common for an executive to say, 'I never watch those shows' and veto a media buy on the strength of this formidable evidence. Or the president, passionate about his or her story, proclaims to the public relations team, 'This is front page stuff!' without having an editor's background to recognize genuine newsworthiness. An idea isn't great simply because someone had it. 12. Just because it works doesn't mean it's right. This is a strategic issue, not a moral one. Business was very good for a New York-based manufacturer as orders rolled in. Recognizing that the company was starting to plateau, management called in a marketing consultant. A series of customer interviews revealed very high customer-satisfaction ratings. This was a valued supplier, but it was shipping one kind of product: What customers needed fast. It worked, but it wasn't the right focus for the manufacturer. Other vendors got the 'regular' orders. Anyone who could meet the manufacturer's delivery schedules could take its business away. Although the manufacturer's systems worked efficiently, the company was vulnerable. To avoid a possible catastrophe, the company planned and implemented a shift in focus by introducing a proprietary product line. 13. On the Internet, the watchword is 'free.' Perhaps the farthest-reaching change brought about by the Internet is the value of 'free.' Netlibrary.com is a free public library. Borrow or buy a book-it's your choice. There are many free books, and for only $29.95 a year, you can access an even larger collection. Encyclopaedia Britannica tried to sell access to its 30 volumes online for $5 a month. It didn't work. Then it offered the access for free, and 10 million people attempted to visit the site the first day. With such a powerful pull, Britannica is attracting advertisers. E-greetings Network, Inc. had the same experience. When it sold greeting cards on its website, it attracted 300,000 users. When it gave the cards away, 7 million visitors arrived. CEO Gordon Tucker said, 'Charging for cards was a small idea. Giving them away is a really big idea.' David Cowan of Bessemer Venture Capital added, 'People expect a lot of things for free. And if you don't give it away, some other start-up will.' So 'free' doesn't mean that the companies have to lose out. Advertisers are now paying visitors to visit their sites. 14. There will be no more hunters. In selling, the image of a 'hunter' (a male) going in for the kill remains intact. The notion of the 'gatherer' (a woman) as a salesperson is disdained. Now this notion is crumbling like the Berlin Wall. The Internet turns the tables -- the successful salesperson will be the gatherer. Selling today requires nurturing prospects, and the gatherer uses a cultivation and harvesting process to make the sale. There's an interesting implication in all this. With such dramatic changes in buyer behavior, it's probable that sales, like other professions, will be rejuvenated by people in whom the traits necessary for cultivating and harvesting are often observed: Women. 15. It's 24/7 for everyone. Although some people erect firewalls between work and their personal life, the direction is toward a blending of the two. A wired world sets no boundaries on place or time. This translates into changing customers' expectations. In an amazing about-face, customers are less willing to travel to make purchases. Online buying is breaking the back of a deeply ingrained 50-year shopping-center mentality. You might want to check out the luggage at 7:35 a.m., browse again at 12:19 p.m., and make the purchase at 10:07 p.m. 16. The customer is in charge. Forrester Research concludes what might seem obvious about online buying behavior: Customers want convenience first and foremost. 'Dell or Be Delled' intoned a Wall Street Journal headline. Focusing on the main reason for computer mogul Michael Dell's success, the writer stated, 'Dell has bypassed traditional distribution channels and gone directly to the customer.' Although the mom-and-pops adhere to their 'We give personal service' mantra, the customer sees it differently: 'I'll shop where it's easy and convenient, and where someone is paying attention to my needs.' Such a statement marks an abrupt and far-reaching shift in buyer behavior. It's ironic that a debate is raging over privacy on the Internet at the same time that customers are eagerly providing online retailers and service companies with an enormous amount of personal data. Customers know that the information is needed if they're to be served in precisely the way they want and expect. The more information available, the better the service. There's a message in all this. There are no more power elites. The changes brought about by the Internet aren't just about doing it better and faster, although this is essential for survival. These 16 strategies might not cover every eventuality or solve every problem, but they can point a business in the right direction. ...

Basic Facts About Registering A Trademark, Part 2
BASIC FACTS ABOUT REGISTERING A TRADEMARK Part 2 of 5   Use of 'TM,' 'SM,' and 'r' Symbols Anyone who claims rights in a mark can use the TM (trademark) or SM (service mark) designation with the mark to alert the public to the claim. It's not necessary to have a registration or even a pending application to use these designations. The claim may or may not be valid. The registration symbol may be used only when the mark is registered in the PTO. It's improper to use this symbol at any point before the registration issues. Please omit all symbols from the mark in the drawing you submit with your application; the symbols are not considered part of the mark. Information Numbers General Trademark or Patent Information (703) 308-HELP Automated (Recorded) General Trademark or Patent Information (703) 557-INFO Automated Line for Status Information on Trademark Applications (703) 305-9723 Additi...mation (703) 308-9400 Assignment & Certification Branch (Assignments, Changes of Name, and Certified Copies of Applications and Registrations) Trademark Assistance Center (703) 308-9000 Information Regarding Renewals [Sec. 9] Affidavits of Use [Sec. 8], Incontestability [Sec. 15], or Correcting a Mistake on Registration (703) 308-9500 Trademark Trial and Appeal Board (703) 308-9300 Assistant Commissioner for Trademarks (703) 308-8900   The Registration Process Filing Date/Filing Receipt The PTO is responsible for the federal registration of trademarks. When an application is received, the PTO reviews it to determine whether it meets the minimum requirements for receiving a filing date. If the application meets the filing requirements, the PTO assigns it a serial number and sends the applicant a receipt about two months after filing. If the minimum requirements are not met, the entire mailing, including the filing fee, is returned to the applicant. Examination About four months after filing, an examining attorney at the PTO reviews the application. If it's determined that the mark can't be registered, the examining attorney will issue a letter listing any grounds for refusal and any corrections required in the application. The examining attorney may also contact the applicant by telephone if only minor corrections are required. The applicant must respond to any objections within six months of the mailing date of the letter, or the application will be abandoned. If the applicant's response does not overcome all objections, the examining attorney will issue a final refusal. The applicant may then appeal to the Trademark Trial and Appeal Board, an administrative tribunal within the PTO. A common ground for refusal is likelihood of confusion between the applicant's mark and a registered mark. This ground is discussed in Part 1. Here are other marks that may be refused: Marks that are merely descriptive in relation to the applicant's goods or services, or a feature of the goods or services Marks consisting of geographic terms or surnames Marks may be refused for other reasons as well. Publication for Opposition If there are no objections, or if the applicant overcomes all objections, the examining attorney will approve the mark for publication in the Official Gazette, a weekly publication of the PTO. The PTO will send a NOTICE OF PUBLICATION to the applicant indicating the date of publication. If there are two or more applications for similar marks, the PTO will publish the application with the earliest effective filing date first. Any party that believes it may be damaged by the registration of the mark has 30 days from the date of publication to file an opposition to registration. An opposition is similar to a formal proceeding in the federal courts, but is held before the Trademark Trial and Appeal Board. If no opposition is filed, the application enters the next stage of the registration process. Issuance of Certificate of Registration or Notice of Allowance If the application was based on the actual use of the mark in commerce prior to approval for publication, the PTO will register the mark and issue a registration certificate about 12 weeks after the date the mark was published if no opposition was filed. If, instead, the mark was published based on the applicant's statement of having a bona fide intention to use it in commerce, the PTO will issue a Notice Of Allowance about 12 weeks after the date the mark was published-again, provided that no opposition was filed. The applicant then has six months to either (1) use the mark in commerce and submit a STATEMENT OF USE, or (2) request a six-month EXTENSION OF TIME TO FILE A STATEMENT OF USE. The applicant may request additional extensions of time only as noted in the instructions on the back of the extension form. If the statement of use is filed and approved, the PTO will then issue the registration certificate. If the application was based on the actual use of the mark in commerce before approval for publication, the PTO will publish the application with the earliest effective filing date first. Any party that believes it may be damaged by the registration of the mark has 30 days from the date of publication to file an opposition to registration. An opposition is similar to a formal proceeding in the federal courts, but is held before the Trademark Trial and Appeal Board. If no opposition is filed, the application enters the next stage of the registration process.

Setting Occupational Safety And Health Standards
INFORMATION DATE 19920218 DESCRIPTION USDOL Program Highlights, Setting Occupational Safety and Health Standards TOPIC Setting Standards SUBJECT Setting Occupational Safety and Health Standards ABSTRACT The Occupational Safety and Health Act of 1970 authorizes the Secretary of Labor through OSHA to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce through public rulemaking. An overview is provided of the safety and health standard setting process. U.S. Department of Labor Program Highlights Fact Sheet No. OSHA 92-14 SETTING OCCUPATIONAL SAFETY AND HEALTH STANDARDS The Occupational Safety and Health Act of 1970 authorizes the Secretary of Labor through the Occupational Safety and Health Administration (OSHA) 'to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce' through public rulemaking. OSHA safety standards are designed to reduce on-the-job injuries; health standards to limit workers' risk of developing occupational disease. Most OSHA standards are horizontal-they cover hazards which exist in a wide variety of industries. These are compiled as the OSHA General Industry Standards. Vertical standards apply solely to one industry. OSHA has promulgated vertical standards for the construction, agriculture, and maritime sectors. Some general industry standards apply to construction, agriculture, and maritime as well. Getting Started. The impetus to develop a new safety or health standard can come from a variety of sources: OSHA's own initiative; the U.S. Congress; information from the Department of Health and Human Services' National Institute for Occupational Safety and Health (NIOSH); Environmental Protection Agency's Toxic Substances Control Act (TOSCA) referral; public petitions; or requests from OSHA advisory committees. Standard Setting Process. Standard setting may begin with publication in the Federal Register of a request for information (RFI), an advance notice of proposed rulemaking (ANPRM), or a notice of proposed rulemaking (NPRM). Through an RFI or an ANPRM, OSHA seeks information to determine the extent of a particular hazard(s), currently used and potential protective measures, and costs and benefits of various protective strategies. OSHA has also sought to begin work on new standards by developing consensus through negotiated rulemaking. The agency forms an advisory committee representing the interest groups affected including industry and labor, which meets to hammer out an agreement serving as the basis for a proposed rule. The process is intended to shorten the rulemaking timetable and discourage legal challenges to the final standard while at the same time providing for full public comment on the issue. Information gathered in any of these ways and/or other available information such as injury and fatality data is used to develop a proposal. Sometimes OSHA circulates early drafts of proposals for informal comment from affected interest groups. Formal proposals are published in the Federal Register with a public comment period usually over the next 60 to 90 days which occasionally may be extended at the request of interested parties. Commentors may also request a public hearing on a proposal. Public hearings are presided over by a Department of Labor administrative law judge who certifies the record after all data are received , though decisions affecting the final standard are made by OSHA as the agent of the Secretary of Labor. Hearings are followed by post-hearing comment periods-usually 30 or more days. OSHA uses all of this information to prepare and publish in the Federal Register a final standard or a determination that no standard is needed. Standards take effect in 90 days or less, although some provisions such as requirements for detailed programs or engineering controls may be phased in over a longer period. OSHA final standards may be challenged in the appropriate U.S. Circuit Court of Appeals by adversely affected parties. Special Requirements for Health Standards. Based on Supreme Court decisions and a Presidential Executive Order, OSHA follows a four-step process for developing occupational health standards. First, the agency must demonstrate that a particular hazard poses a significant risk to worker health. Second, the agency must show that an OSHA standard would eliminate or substantially reduce that risk. Then the agency selects the most protective exposure limit that is economically and technologically feasible. Finally, the agency looks for the most cost-effective ways for employers to meet the exposure limit. Standards Priorities. The Department of Labor publishes in the Federal Register a semiannual agenda of the standards being actively worked on, including target dates. The agenda usually appears in April and October and covers regulatory activity anticipated for a one-year period. Special Standards. During its first two years, OSHA was authorized by the act to promulgate national consensus standards and other federal standards as OSHA standards. Where standards differed, the Act required OSHA to choose the most protective. National consensus standards came from voluntary standards developed by such groups as the American National Standards Institute and the National Fire Protection Association. Many OSHA safety standards were adopted in this way. Safety and health standards were adopted from the Walsh-Healey Act standards. OSHA also has the authority to promulgate emergency temporary standards when it determines that workers are exposed to 'grave danger' from toxic substances or physical conditions and could be protected by an OSHA standard. During the six-month life of an emergency temporary standard, OSHA is charged with developing a permanent standard to protect employees. The emergency temporary standard remains in effect until superseded by a permanent standard. State Standards. States are encouraged to establish and maintain their own job safety and health programs subject to Federal approval. State-plan states' standards must be 'at least as effective' as the federal standards, with comparable state standards to be issued within six months after new OSHA standards are published in the Federal Register. States also can develop standards covering areas or issues not regulated by federal OSHA. These state standards, when applicable to products distributed or used in interstate commerce, must be 'required by compelling local conditions' and not 'unduly burden interstate commerce.' Variances. The Act also provides, through the 'variance' procedure, an alternative to compliance with specific requirements of an OSHA standard. A permanent variance may be granted to an applicant (employer) who can demonstrate to OSHA's satisfaction that the proposed alternative (condition, method, practice, or the like) will provide an employee environment as safe and healthful as that which would be afforded by compliance with the standard. The Agency may also grant a temporary variance to an applicant who can demonstrate to OSHA that additional time will be needed to comply with a newly promulgated standard beyond the effective date. Keeping Track of OSHA Standards. Notices of OSHA standard-setting activities are published in the Federal Register. All OSHA standards are available in the 29 Code of Federal Regulation as well as on a compact disc with read-only memory (CD-ROM) for paying subscribers. Standards interpretations, directives, documents, the OSHA Field Operations Manual, chemical sampling information, the OSHA Technical Manual, Federal Register index, hazard information bulletins, congressional testimony, memoranda of understanding with other agencies, corporate-wide settlement agreements, library catalog, and other program information maintained on the OSHA Computerized Information System (OCIS) also are on the disc. The subscription is $88.00 for the service with three quarterly updates. A single disc is available for $28.00. Visa or MasterCard number along with expiration date or a check made payable to Superintendent of Documents may be used to order the service (order number 729-013-00000-5). The disc may be ordered from the Superintendent of Documents, Government Printing Office (GPO), Washington, D.C. 20402-9352; telephone (202) 512-0000; or purchased from a local GPO Bookstore. See the government listing in the telephone directory for GPO's local address. This is one of a series of fact sheets highlighting U.S. Department of Labor programs. It is intended as a general description only and does not carry the force of legal opinion....

Agency Risk Management Of Soft Market/Hard Market Exposures
How well are you managing your loss exposures involving market conditions? This article will offer guidelines on your agency’s management of market exposures in hard and soft markets alike. During a soft market, carriers are far more flexible and willing to grant enhancements that aren’t available in a hard market. Knowing what gaps can occur and making sure the client understands them can help avoid or reduce the impact of an E&O claim and help make your client an agency advocate. There are fewer exposures when you go from a hard market to a soft market than when going from a soft market to a hard one. When the market hardens, standard carriers become more selective about what business they write and under what terms. Excess & Surplus Lines (E&S) carriers increase their writings considerably. When you need to move a standard policy into an E&S market, you must consider a number of due diligence areas, such as: Policy coverage and definitions Restrictive endorsements Occurrence vs. claims-made forms Admitted vs. Non-Admitted carriers Solvency/guaranty fund protection Relationship with a contracted carrier vs. the E&S broker or carrier Even if an E&S market uses a standard form, it might be an older version than the one your client currently has and/or be more restrictive than the one it’s replacing. You could also run into a situation in which a coverage enhancement included on the old form must be added to the new one at an additional premium. You might find that the new policy’s definitions section isn’t as inclusive as the old one or that there’s been a change as to whether it’s an occurrence or a claims-made form. Even if you move the coverage from one standard carrier to another, the old carrier might have coverage enhancements that the new carrier doesn’t include. This all boils down to the fact that your agency needs to exercise a greater degree of due diligence to avoid or reduce the impact of an E&O claim. Taking the right steps will also serve the client more effectively and strengthen your carrier relationships. In that light, we’ll discuss three broad topics — solvency, regulatory issues, and policy coverage — focusing on background information, exposures, and agency risk management techniques. SOLVENCY Although solvency is a concern in hard or soft markets alike, the problem worsens with increased E&S use in a hard market. E&S market insolvency is no higher than for standard companies. In most cases, agents who use E&S markets are “once removed” from the kind of contracted company relationship it has with standard carriers. If the E&S market is e approved but not admitted to do business in the agent’s state, the problem becomes still more serious. Also, in most states an E&S market carrier has as much regulatory oversight as an admitted and licensed carrier and that has met the financial deposit requirements. Finally, the State Guaranty Fund protection probably won’t extend to the insured if the carrier becomes insolvent. To start with, most E&S brokers do a good job of advising agencies about companies’ Best ratings. In many states, specific requirements and procedures apply when using an E&S market. Because your agency’s due diligence requires making sure that the client understands the risk, it’s necessary to understand Best’s or other rating organizations. RATINGS A.M. Best, established in 1899, has a huge database. It’s considered the leader and the standard for the industry. There are other rating organizations, most of which are also outstanding sources of information. Some of these firms specialize in certain areas. As a general rule, avoid carriers that A.M. Best rates as “vulnerable,” although sometimes there’s no other market available. Best rates carriers with a “B” or below and those with a financial performance rating (assigned to small or new companies that provide the required financial information) of FPR 4 as vulnerable. Your E&O policy might also have an insolvency exclusion. At the least, you should take specific steps to explain and document the client’s risk. Best also has a number of “Not Rated” categories for such reasons as insufficient data and operating experience. Take such a rating as a warning either to not use the market or to be particularly careful in advising the client. Here are some specific E&O risk management techniques your agency might use: Establish an ongoing Best’s (or other rating organization) rating review program. Make it a regular duty of your producers and staff to check the ratings. Review your agency’s current E&O policy and every renewal, as well as any policy provisions, if you shop your renewal with other E&O markets. If there’s an insolvency exclusion, ask your E&O carrier if it can be deleted based on your written policies and procedures for monitoring activity. If not, the carrier might have a broadening endorsement that reduces the impact of an insolvency, based on special circumstances. Develop, install, and enforce a policy of not using carriers with “vulnerable” ratings. If special circumstances force you to use a vulnerable carrier, outline and communicate the specific actions and requirements that must be followed to use the carrier. Have a written procedure requiring that a carrier’s rating be checked and recorded before using it. If the rating has been downgraded, even with a “secure” rated company or when Best notes that a company is “under review,” require agency management approval before using the carrier. Make following agency procedures a criterion of staff and producer performance evaluation. Since most agencies do a monthly production and financial review; it should be easy to add an automation report that monitors the ratings check. Carriers “under review” or rated “vulnerable” by A.M. Best might not be a risk, but they bear scrutiny. Advise your client accordingly and document your actions. Too many agencies do nothing because they take the attitude that the client is aware of the risk. Then, if the worst happens, they have an E&O issue that’s difficult to defend. Rating information is available daily, weekly, monthly, and annually through the rating organizations, their publications, trade magazines, newspapers, and the Internet, so there’s no reason for not keeping up with rating changes and developments. REGULATORY ISSUES Regulatory issues involve state insurance regulatory agencies and the roles they play. The issue of whether a state or federal agency will regulate the industry is still up in the air; although the states will probably continue to regulate, this might change. Possible areas of change include licensing standardization among the states, the possibility of a single federal agent’s license, resident/nonresident agent status, electronic signatures, and electronic commerce in general. What’s certain is that there will be change. The potential impact of combining financial services, insurance, and electronic commerce is just emerging. The time frame for change is compressed, and an enormous amount of information will be available instantly. Most states tax premiums to raise the money for regulatory activity, but the regulatory agency gets so little of this revenue that it can’t afford the actuaries, auditors, technicians, and other specialized staff to oversee admitted companies properly. Most states do a commendable job with their limited resources. Your agency can’t just pass off its due-diligence responsibility to the regulatory agency. Your clients view you as their primary information source and expect you to inform them of developments that might affect them. Communication with clients is more important than ever amid the company mergers, acquisitions, and realignments, and the expected regulatory changes. For example, although the causes of an insolvency might evolve over time, it could be triggered by a sudden event — such as a catastrophe loss, an unexpected revenue reduction, or a market downturn that reduces investment income — without which there might not be an insolvency at all. It’s crucial to pay attention to your market performance! POLICY COVERAGE Policy coverage involves two broad areas: Policy forms, coverage, definitions, and endorsements Occurrence/claims made, coverage triggers, retroactive date, and extended reporting periods We’ve mentioned the differences between E&S and standard markets; but you might also have problems going from one standard carrier to another. Although many carriers use ISO or AAIS coverage parts and forms, a number of carriers use their own filed forms. Also, a carrier might use an ISO form and then file its own endorsements. Definitions might be more specific on some forms than on others. Coverage enhancement endorsements might differ from one carrier to another. Even if the client renews with the expiring carrier, the carrier might have filed a renewal coverage that’s only slightly more restrictive to most insureds, but happens to affect your client significantly. In all these cases, it’s essential to review renewal policies and forms, and new business policies when changing carriers. When writing a new client, compare their current carrier’s policies with your replacements — a good practice whether the market is hard or soft. Pay careful attention to the edition dates of the forms, definitions, and endorsements, as well as to the forms. It’s crucial to confirm any differences, positive or negative, with the client for their benefit, as well as to avoid or minimize an E&O claim. Remember the old saying: An ounce of prevention is worth a pound of cure. Occurrence/claims made, triggers, retroactive dates, and extended reporting considerations are other problem areas, primarily in Liability and Umbrella/Excess Liability policies. You must understand these areas to prevent coverage gaps and to be able to explain them to the client, who then can make an informed decision. In general, when a policy that has been on an occurrence basis continuously is renewed on an occurrence basis, a problem is unlikely. However, changing from one basis to the other can cause coverage gaps if you don’t understand and inform the client of the circumstances. You should also consider coordinating a General Liability policy with an Umbrella/Excess Liability policy. You need to be able to explain these terms to your clients: Policy Trigger: This determines when a specific Liability policy covers a claim. Occurrence Trigger: The loss is covered if the event causing the loss occurs during the policy period, no matter when the loss is reported. Claims-Made Trigger: The loss must be reported during the period the policy is in effect. Retroactive Date: This is usually the inception date of the policy, but it can be a specified date prior to inception or not specified at all (also called “prior acts” or “full prior acts” coverage). Extended Reporting Periods: This is usually called “tail” coverage because once it’s added, the policy will cover claims submitted after the policy expires. Normally, the policy is designed to cover claims reported within five years, as long as the occurrence is reported to the insurer within 60 days of the end of the policy term. CONCLUSION We’ve only covered the tip of the iceberg in soft market/hard market E&O exposures. Taking initiatives to reduce these exposures will benefit your agency, while demonstrating your professionalism and your concerns to your clients....