Trademarks (...and Patents ... and Copyrights)
If you’ve ever wanted to copyright that patent on your trademark, or patent that trademark on your copyright, you’re not alone. People often confuse these words, but luckily the concepts are actually quite simple when you learn more about them.
“When a new client comes into our office and is ready to begin his or her journey to protect the business they’ve worked hard to establish, I always start our initial consultation with a brief overview of the different types of Intellectual Property – patents, copywrites, and trademarks” explains Whitehurst, Blackburn & Warren attorney Drew Tuggle.
“These different types of intellectual property may all work together, but they are not all the same, and spending your money wisely to protect your company’s intellectual property is important to your business.”
Basic Differences
A patent is used to protect new and useful inventions, or improved methods of making things. You’d want to apply for a patent if your company develops a new engine, creates a new video game, or launches a new makeup line.
A copyright is used to protect original works that contain creative impression such as books, articles, songs, art and even software code.
A trademark is your company’s identifying words and designs in the marketplace. Trademarks are the oldest form of intellectual property, but they’re often misunderstood.
Defining Your Trademark
From the time humans began to roam the earth, people have used marks to indicate the maker or producer of goods. The Egyptians, Greeks and Romans all used specific markings on their hand-crafted pottery to designate the maker of each respective item. Of course, a lot has changed since then, and with that change we’ve seen a rapid increase in the complexity of trademark law. But over time, the definition of a trademark has remained the same:
A trademark is any word, letter, number, design, or combination of those that identifies one party as the particular source of a good or service.
“To make it easy to remember, I like to think of a trademark as any mark that identifies a source of good or service,” explains Tuggle.
“When you see a logo on a computer or a pair of jeans or some other product, you know who made or produced those goods. You subconsciously use the logo to distinguish the goods you want from the goods made or produced by a competing brand.”
Over time, trademarks gain reputation – sometimes good, sometimes bad – and consumers come to expect a certain level of quality based upon that reputation, which in turn drives a consumer’s purchasing decisions, which is why trademarks are so important.
How Do I Get a Trademark? In answering this question, it’s first important to understand that there is a difference between using or getting a trademark and owning a Federal Registration for that trademark. Any time a business uses a word, letter, number, slogan, design or combination of these to indicate the source of a good or services in the marketplace, a trademark is established and no other additional steps are required. However, simply creating a trademark in this manner provides little to no benefit to a business without taking additional safeguards to protect it.
“Basically, there are two ways to protect your mark,” Tuggle says. “You can protect it under common law or you can federally register it and gain additional protection.”
Common law rights go into effect when you first start using your trademark, but those rights are created under State law and are tied to your use of the mark. So, if you only use your trademark in a limited geographic area, your enforceable rights may only cover that limited geographical area. That’s in contrast to what happens when you federally register your mark.
“When you register your trademark with the United States Patent and Trademark Office (USPTO), your rights become nationwide rights,” explains Tuggle.
“Specifically, a federal registration creates a legal presumption that you have the exclusive right to use that mark throughout the country and U.S. territories. In addition, it puts the public on notice that you have that right and should you encounter unauthorized use of your mark by another party, you can sue that party in federal court for infringement of your registered mark.”
Defending Your Trademark
Unfortunately, the USPTO doesn’t help companies enforce and defend trademark rights. Instead, that duty belongs to the individual trademark owner. Registration does provide a pseudo-automatic layer of protection though.
“If you have a live federal registration, and someone else tries to register a confusingly similar mark for related goods or services, the office will refuse registration of that mark as part of the thorough examination process that the office performs on every application” Tuggle says.
“So while the USPTO doesn’t defend your mark per se, the registration process itself does provide a first line of defense.”
Even though the application process is time consuming, complex, and is not required in order to legally create and use your trademark, the legal team at WBW advises business owners to strongly consider taking the time to federally register their trademark.
“If you don’t register, you miss out on powerful tools and remedies that can help you keep your business and its property secure,” Tuggle advises.
What's Next?
For assistance with determining your best course of action to protect your intellectual property, or for help with registering or defending your mark, contact Whitehurst, Blackburn & Warren at (229) 226-2161.