Commonly Asked Questions About Copyright and Trademark

If you're in the business of branding, then you absolutely should become familiar with how copyright and trademark law works. We're not saying you need to become an expert. However, it would help if you understood enough to practice safe branding.

Undoubtedly, intellectual property is one of the most valuable assets a person or entity can own. It's therefore essential to understand basic copyright, trademark, and patent rights to protect it both domestically and internationally. Remember to reach out to a qualified attorney for any specific questions regarding your business.

Following, we will help clarify and explain the basics of copyright and trademark to help you in protecting your brand.

What are copyright, trademark, and patent rights?

It's crucial to be able to tell these terms apart if you're starting a business.

First up, we have copyright. This protection is provided by the Copyright Laws of the United States. It's a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. Copyright law covers many different works, including paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, poems, blog posts, movies, architectural works, plays, etc.

"The Author (or any individual or company to which the Author has transferred his rights) is the only entity which may lawfully reproduce the copyrighted work, distribute copies of it, perform the copyrighted work, display it publicly, or are derivative works based upon the copyrighted work, e.g., prepare a translation of it into a foreign language." - Stimmel Law

Next, there's trademark. A trademark is a recognizable sign, phrase, or symbol that denotes a product or service and legally differentiates it from all others of its kind. Intellectual property rights protect trademarks.

"In principle, a trademark registration will confer an exclusive right to the use of the registered trademark. This implies that the trademark can be exclusively used by its owner or licensed to another party for use in return for payment. Registration provides legal certainty and reinforces the position of the right holder, for example, in case of litigation." - World Intellectual Property Organization

Finally, we have a patent. This is a legal right to an invention given to a person or entity without interference from others who wish to replicate, use, or sell it. It gives the inventor exclusive rights to the patented process, design, or invention for a designated period in exchange for a comprehensive disclosure of the invention. To obtain a patent, technical information about the invention must be disclosed to the public in a patent application.

"Most patents are valid for 20 years in the U.S. from the date the application was filed with the USPTO, although there are circumstances where exceptions are made to extend a patent's term." - Investopedia

How can I protect my ideas and work?

Unfortunately, people stealing your work is something inevitable, and it's out of your control. While this is a frustrating situation, some people might view it as a good problem to have. Instead, you should focus on figuring out how much of a margin of copycats can copy your work and your business still thrive.

However, before you even consider protecting yourself, you need to be sure that you're not accidentally infringing on anybody else. You need to have a business with integrity. It's important that you're using content and copyrighted work that are original to your brand.

How does the trademark registration process work?

To federally register a trademark, you have to submit a trademark registration to the United States Patent and Trademark Office, or USPTO. There, your application will be reviewed by an examining attorney. The attorney will compare your mark to existing trademarks to ensure there is no conflict. If the examining attorney approves your application, it will go for a 30-day period of “publication” where any third party can file an “opposition” to your application. Your trademark application will be cleared for final registration if no opposition is received.

The following video from Gerben provides a comprehensive overview of the trademark registration process:

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Now, federal trademark registration is important for three reasons:

• Registration provides public notice of your trademark.
• It gives nationwide coverage of your trademark.
• It provides presumption of ownership and validity of your trademark.

Here are some important points to know before starting the trademark registration process.

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Here is also something interesting to consider. In the trademark world, as long as what you're doing is significantly different than everybody else, you can be as inspired as you wish. As long as you can build a legal argument and people can't confuse your brand with anybody else, it's acceptable. Two companies can own the same trademark, but it's okay if they are both very different businesses.

How much does it cost to register a trademark federally?

The cost of filing to register a trademark depends on several factors. It depends if you choose to hire an attorney, whether to conduct a comprehensive trademark search before filing your application, and the associated government filing fees. Usually, a government filing fee for a mark already in use is $350 per category or “class” of goods and services seeking protection.

"If you apply to register your brand and wish to protect cosmetics, shoes, and cellphone cases, these goods fall within three separate classes, so the initial filing fees would total at most $825. Furthermore, if you originally filed an application to reserve rights to use the mark in the future, the additional filing to prove “use in commerce” (typically due about a year after the initial filing) will cost $100 per class in government fees." - Gerben

Which trademark symbols should I use?

The first thing to understand is that many countries recognize two different types of markings representing trademark status: ® and ™.

"The "®" indicates that a trademark has been registered with a country's trademark office, and the "™" means that the user is claiming rights to the brand without registering the mark. A "®" mark constitutes a claim of having stronger trademark rights than a "™" mark, which only claims use of a certain sign, independent of actual registration." - Dennemeyer

How these symbols are used depends on different countries. For example, in the United States, trademark owners use ® designation on their product packaging, or they might miss out on some of the benefits of trademark ownership. However, there is no similar requirement to include the ® designation on packaging and labels in France.

Also, while most countries recognize the ® designation, the ™ is primarily a product of the English common-law system. In fact, ™ is often seen on products in the United States and Australia but doesn't hold much importance in other parts of the world.

Here are some other helpful trademark rules that Dennemeyer points out:

• In the United Kingdom, businesses can use the ® mark or "RTM" lettering to indicate that a trademark has been registered, even if that mark is not registered in the UK.
• If you do not use a ® mark in Canada or Spain, your trademark is still enforceable.
• You lose those rights if you do not include the ® mark on products sold in Mexico, Chile, Peru or the Philippines.

How can I enforce copyright rights?

As a copyright owner, if you become aware of an infringement, you should bring it to the attention of your intellectual property counsel.

You and your counsel will then evaluate whether (a) the alleged infringer has had "access" to the copyrighted work and (b) whether the allegedly infringing work is "substantially similar" to the copyrighted work. "Access" means that the infringer had an opportunity to copy the copyrighted work, and "substantial similarity" means that the allegedly infringing work improperly appropriates the copyrightable elements of the copyrighted work. - Stimmel Law

If there is, in fact, an infringement, your lawyer might advise sending a "cease and desist" letter as the first step. If the matter cannot be resolved at that point, the copyright owner may institute a civil action against the alleged infringer in federal court. The copyright owner may also attempt to obtain a "preliminary" injunction, preventing the sale or other use of the infringing work. However, make sure you have a substantial case in your favor before you get involved in any lengthy and pricey legal processes.

Protect Yourself & Your Brand

As we mentioned, these are some of the most commonly asked questions surrounding copyright and trademark law. However, many other specific situations may arise in your daily dealings with your brand and company. It's essential to stay informed and investigate when you have doubts about how to proceed on a matter. Most importantly, we advise you to get legal counsel (specifically someone dealing in trademark law) when such doubts arise. Always try your best to protect everything you've worked for so your brand can continue to thrive!

Note: This article is for informational purposes only and is not to be construed as legal advise.

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