Copyright confusion & trademark tribulations
I thought it might be good to clear up some confusion over the differences between copyrights and trademarks when it comes to marketing. Basically, a copyright covers the expression of an original idea (but not the idea itself), and a trademark is a distinctive sign of identification. The first is automatic upon creation, the second has to be put into commercial use.
Not enough info? Then here is a brief summary of each based on my experiences, a bit of online research, and talking to the law firm we use:
Disclaimer Notice: Please note that I am not a lawyer, I don’t pretend to be a lawyer, and no one would hire me to portray one on TV – so do not take this as actual legal advice.
A Copyright is a form of intellectual property law, focusing on “original works of authorship.” These are normally thought of in literary, dramatic, musical or artistic genres (poetry, novels, movies, songs) but they can also be software, architecture, and things such as photos/designs/copy used on brochures, web sites, etc. You cannot copyright names, titles, slogans, or short phrases (but you may be able to include those along with your logo.)
In order to figure out if something should have a copyright, note the wording in that phrase “original works of authorship.” “Original” means it has to be something that no one else has created or expressed in the same way. “Works” means it has to be tangible — it has to exist — and no, you cannot copyright an idea. “Authorship” simply means that the copyright belongs to the creator.
If you are the creator, you will be happy to learn that a copyright exists from the moment it is created in a tangible form. You don’t even have to register it to own that copyright. But if you do register, you are then eligible for damages and lawyer’s fees in a successful lawsuit against infringement. Copyrights can be filed by the creator, are simple enough to do yourself, and are pretty cheap to register online ($35) – although it seems most design work has to be filed with paper forms (still under $100). However, you need to think of those as basically filing fees, since copyright registrations are routinely approved, and typically not thoroughly researched or analyzed until a conflict arises.
BTW, In case you have heard of a “poor man’s copyright” which involves mailing yourself a copy of the original, don’t bother. It does not give you any extra protection.
Trademarks, on the other hand, go through a much more rigorous process that often takes a couple of years to get through. But if it is your new logo and/or new name, this is an important step to consider.
The very first thing you need to do if you are considering a name change or logo change is to do a search online at the US Patent and Trademark Office website. Select the type of search you want, enter your name and see what competition you have with “Live” trademarks. It’s not fool-proof, and may not reflect the latest filings, but at least you may have saved yourself some time from pursuing a name or similar logo as used by another financial company. (Hint: remember that common names will rarely be able to get a trademark, and swooshes went out of style back in the 90s.)
Once you have a name and/or logo picked out, and you have gone through the online search, hire a lawyer who knows how to get through the process. Why? Because filing for a TM is a pain. First they put your name and/or logo through a very thorough search in order to get a legal opinion on possible conflicts. The next step is to file an application, which has to wait its turn to be reviewed by an examiner at the USPTO, then wait patiently through what is termed a prosecution period – a period of 12-24 months when the trademark application is made public, and anyone that has a beef with the application has the right to object.
Is it fool-proof if you use a lawyer? Unfortunately, there are still things even the best lawyer can’t control. One of our clients went through the whole trademark process, completely approved, with the logo in use, only to have a Canadian financial company (but not a CU) prove that they had used a similar name earlier, in the US. It was not trademarked here, but because of international agreements and prior use in this country, we had to revise their logo to equally emphasize “Credit Union” along with their name. A bit painful for the CU, sure, but imagine what might have happened without legal assistance.
Is it all worth it? Heck yeah, if only for that warm glow of ownership you feel when you are finally holding that piece of paper with the embossed gold seal.
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