The Small Business Attorney
December 2, 2015
Oftentimes small and new business owners don’t know what they should do with their new ideas, products, or inventions. Most do not know the difference between trademarks and copyrights. Even fewer know how their business can benefit from registration of both. Below are a few questions I have regarding the use of trademarks and copyrights and my response to each.
“How can I protect my business when working with third parties?”
Use written agreements. That is my number one rule in business. I can’t stress this point enough. I don’t care if you’re going into business with your cousin, your mama, your sibling, your daughter, or your son, I doesn’t matter. Have a written agreement. Many people go into business simply saying, “Oh, we’re just going to do this to get started and we’ll worry about all of that later.” No, no, no, and no. There is no later in business. Get the written agreement upfront.
“What is a trademark?”
Trademarks are brand identifiers. A brand identifier is a word, shape, sound, color, or scent that consumers readily identify with a business. This could be a business name or a logo. It could a color such a Tiffany Blue that is associated with the jewelry store. Tiffany’s registered trademark prevents other jewelry stores from using the same or similarly confusing shade of blue. There was once a registered trademark for the floral scent of a company’s thread, because the scent was specific to their business. Pretty awesome, right? That’s what trademarks protect; brand identifiers. Brand identifiers also include shapes. The original shape of the Coca-Cola bottle, or “trade dress” as it is called, is protected by trademark law. Trademarks protect anything that’s going to differentiate your business from someone else’s business.
“What is a copyright?”
Copyrights, on the other hand, which are another form of intellectual property, protect original literary or artistic works. This includes screenplays, computer programs, paintings, sketches, graffiti, songs, etc.. It is very important to note that the owner of the copyright is the person who creates it, also known as the author. Unless the person is an employee who created the work under the scope of their employment a copyright assignment is needed to transfer the rights from the author to the buyer.
“Do I need a trademark or a copyright to protect my brand name, logo, and business name?”
A trade name, logo, and anything that sets a business apart and differentiates it from others, will need a trademark. Sometimes the trademarks and copyrights overlap. For example a company’s logo can is a trademark if it readily identifies the source of its good/services. It is also a copyright if the logo is an original drawing or design.
“Can I trademark or copyright a quote, slogan, or hashtag?”
This is a very popular question. People come to me all the time and say, “Oh, I have a slogan that I want to protect so no on else can use it.” You can’t do that. Copyright law does not protect short statements. The slogan or hashtag is not a trademark unless it, in some way, readily identifies the source of a service or good. If it does not, it’s not a trademark. For example “Just Do It” is a trademark because it readily identifies the source of a products, Nike.
Many people want to put slogans on t-shirts. You cannot simply put a short phrase or statement on a t-shirt and think you will have any sort of protection. The statement needs to have some sort of association with your company. The key is to associate the statement with your brand because again, trademarks are brand identifiers.
“Can I use a trademark that shows up as ‘dead’ in the USPTO system?”
When you go into the USPTO system, and you see something that’s dead, you should first find out why it’s dead. Even if it is dead, you still want to do some homework. With the USPTO system, you have to show proof of use every few years. If you fail to do so the office will assume you have abandoned your mark and accordingly, it will show up dead in the system.
After you submit your initial application and it is approved, you will have to submit paperwork between 5 and 6 years proving that you are still using your mark. After that, it is every 10 years. You want to do a search to make sure the trademark is truly dead or if the trademark owner just forgot to submit their paperwork.
Do you have specific questions as to how trademarks and copyrights pertain to your business? Give us at call at 334-523-0022.