Legally Protecting Your Business Against Copycats: Copyright & Trademark
Once you decide to create something and put it out into the world you run the risk of someone claiming it as their own. So how do your protect your work? Today I have Brandi spilling all the tea on how to legally protect your business from copycats!
The primary value of a creative business lies in what you have created—your content, designs, novel ideas, and products. In short: your intellectual property. Uniqueness is the strongest niche in creativity. However, as your business’ popularity increases, the likelihood that another person or business notices and copies your intellectual property also increases. Whether copying your business’ name, brand name(s), logo, or content, the person potentially steals profit and/or hurts your brand in the eyes of consumers—either way diluting the value of your business. By creating content and branding your business, you have certain inborn intellectual property rights, but those are strengthened by official registration of your trademarks and copyrights. I will discuss the difference between the two and how to know whether you should protect your business in this way.
Copyright is what you will deal with the most as a creative. Copyright is the legal protection of authorship—such as writings, music, or other works of art that have been tangibly expressed, that is, that can be seen in very concrete mediums such as on paper, online, on canvas, on sheet music, in lyrics, etc. Examples of this are books, photos, music lyrics, blog posts, etc., which are all things that we can see expressed on a medium. You have a copyright as soon as you create something; however, you have to be able to prove that you are the author and created it first if you do not take additional steps. Copyrighting something via registration with the U.S. Copyright Office gives legal public notice that you have the rights and ownership to that particular work and that no one can use it without your permission. Registration strengthens your copyright protection.
Trademark is similar to copyright and can be easily confused with it. One reason why trademarks and copyrights are easy to confuse is that material that is fit for a copyright may be trademarked as well. Using Coca Cola to demonstrate the concept: the logo, Coca Cola Santa Claus, and Coca Cola Polar Bears are all artistic works that could go either way; however, they are intimately associated as brand images and so are appropriate for trademark. The purpose of a trademark is to distinguish the source of the goods or services of one business from another. You can trademark a word, phrase, symbol, design, or even a hashtag.
So essentially, when you want to legally protect your E-book, website content, or photos on your blog, you should go for a copyright. But if you want to protect your business’ name, logo, or unique website design (design is different from website content), you should go for a trademark.
So when should you go about applying for this legal protection and how? You should apply to copyright or trademark your works, names, or designs as soon as they are made public. You can even start your application before you make everything public, but you must make those works public before the application process is over. You are not entitled to copyrights or trademarks if you aren’t using works, names, or designs in public or the “stream of commerce”, as we say in the law.
Keep in mind that both processes take a long time to complete. The U.S. Copyright Office currently estimates up to 8 months time before your application is approved. It generally takes about a year for your trademark application to be approved by the U.S. Patent & Trademark Office. The fee for copyright is about $35 per application whereas the trademark fee is $275 per category
When it comes to trademarks, you can only apply for a trademark under certain categories. If you only apply for a trademark under one category for your business’ name that means someone else can trademark your business’ name under a different category. For example, if I only trademark the name “Brandi Brandy” under a clothing category because I’m going to print that phrase on t-shirts, someone else can trademark the name “Brandi Brandy” under a category for alcohol, because they are going to sell brandy with that name. The idea is that you do not have wholesale rights over the name in all areas of industry because that would limit business in our capitalistic system. You are only entitled to trademarks under the categories that you are actually using the name for. You can of course apply for trademarks for as many categories as you want, but that will cost you $275 for each category and the requirement remains that you use the trademark in the stream of commerce. Consequently, I would not trademark “Brandi Brandy” under the category that would let me produce alcoholic beverages just to preempt another company without any intent or capability to distill alcohol.
You do not need an attorney to file a copyright or trademark application for you, but it is highly recommended that you hire one. While your trademark application processes, the public will have an opportunity to challenge your trademark if they feel that the trademark will infringe upon their business. When someone challenges your trademark, it may require negotiating and certainly requires a lot of legal argument to prevail in the end. It may be easier for attorneys to participate in those negotiations and argument if they were the ones to file the application on your behalf in the first place. There are also various reasons that the U.S. Patent and Trademark Office may deny your trademark application other than someone challenging it. Some of those reasons are that the words are too generic or that they misrepresent your business. An attorney will be able to help you determine whether your name, logo, or design runs the risk of rejection and will be able to help you avoid some of those potential problems and time-delays from the outset.
There is much to consider when it comes to legally protecting your business. But considering how quickly business’ can become popular these days, you can’t afford not to protect your business against copycats. Put in the effort to protect yourself. It will prevent substantial costs in the long run.
Disclaimer: The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature, the information and materials provided may not apply to any specific factual and/or legal set of circumstances. No attorney-client relationship is formed nor should any such relationship be implied. Nothing on this blog is intended to substitute for the advice of an attorney licensed in your jurisdiction. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.
Brandi Howard is a licensed attorney who practices civil litigation, including cases involving business disputes. She will launch a legal education website for small business women in August 2015 that will provide legal tips, downloadable documents for your business including terms of service, privacy policies, and disclaimers, and e-courses on trademark and copyright. Click here to sign up for her newsletter to get legal freebies and to be the first to know when the website launches.