Trademarks and Copyrights: The Basics
August 30, 2018
As an intellectual property attorney, I naturally field a lot of questions about trademarks and copyrights from entrepreneurs, business owners, non-profit executives, inventors, and artists. There’s some confusion out there, and I enjoy setting the record straight and helping people protect what they’ve created, whether it’s a unique product or service, or a work of art.
In today’s post, I’d like to share some of the questions I get and the answers I give on a regular basis with regard to these two major areas of intellectual property.
What’s the Difference?
We see trademarks and copyrighted material all around us. Trademarks are words, phrases, designs, and even symbols that are used to indicate the source of a good or service, and include the name or logo of your favorite store or restaurant. Copyrights, on the other hand, protect original works of authorship, whether it’s a book, photograph, painting, or a sound recording.
How Can I Obtain a Copyright or Trademark?
Actually, there’s no formal process required to obtain copyright or trademark rights. Copyrightable works, such as books and songs, are protected from the moment of their creation, while “common-law” trademark rights are acquired through use of a word, phrase, design, or symbol to indicate the source of goods or services. “Common-law” trademark rights exist throughout the geographic area(s) in which the goods are sold or the services are provided. So if you’re a company with a logo, for example, the use of that logo in your print and digital materials on a consistent basis in the markets where you operate gives you common-law rights with regard to that logo. You can indicate your claim to common-law trademark or service mark rights by displaying “TM” or “SM” in superscript next to that logo.
Should businesses have a copyright strategy?
That depends. A business owner would want to register its copyright in any work from which it derives value. For example, an artist would want to register his or her copyrights in the works of art that he or she sells. Many artists create business entities for this purpose, especially because many artists monetize their copyrights through licensing.
Should businesses have a trademark strategy?
In my trademark practice, I recommend that my clients apply to register the marks they use for their products and services with the US Patent and Trademark Office so that they can feel confident expanding into new markets in the United States. At the very least, a business owner should conduct searches of the USPTO records and online uses to make sure that there are no competing businesses using similar marks in other areas of the country before adopting a new mark.
Do copyrights and trademarks really work, as far as protecting my intellectual property?
You need to have a registered copyright for enforcement purposes. A business must register its copyright before it may sue for infringement. If a business registers its copyright early (that is, before infringement occurs), the business will be eligible for statutory damages and attorney’s fees in the event it has to bring a lawsuit against the infringing party.
When a business registers its marks with the USPTO, it gets nationwide priority of use over third parties seeking to offer identical or similar services under identical or similar marks, even if those parties are located in another city or state. Federal registration also affords the business stronger enforcement rights in the event of infringement.
How much does it cost to obtain copyrights and trademarks?
Both the Copyright Office and the USPTO charge filing fees. Copyright filing fees depend on the type of work being registered and whether the application is filed electronically or on paper. The standard filing fee for an electronically filed copyright registration application is $55. USPTO filing fees depend on the number of International Classes into which the goods and services listed in the application fall and on whether the application is filed electronically or on paper. The fees are $275 per class of goods and services for an electronically filed application, unless the applicant is able to use the USPTO’s pre-approved goods and services descriptions, in which case the fees are $225 per class.
What happens if I don’t register copyrights or trademarks?
A business that fails to register its copyrights risks having to prove actual damages in the event its work is infringed. As I mentioned earlier, if you register your work with the Copyright Office before infringement occurs, it’s a much simpler case.
A business that fails to register its trademarks risks not being able to use its marks in new markets.
If you’re considering protecting your intellectual property, you’re well-advised to engage an attorney focused on the areas of concern, such as trademarks and copyrights, or even patents and trade secrets. At the Forrest Firm, we offer a full suite of services with regard to intellectual property, from searches and filings to representing your company as you prosecute those who infringe upon your work. Contact me at the firm today to address your unique intellectual property needs.