As your small business grows, you’ll probably need to start educating yourself on intellectual property protection for your brand. After all, you don’t want other companies stealing what you do and how you identify yourself. Before you start filling out a bunch of paperwork, though, check out this guide (and the corresponding infographic below) to learn more about copyrights and trademarks.
Patent vs. Copyright vs. Trademark
Before you dive into the world of copyright, you need to make sure this form of intellectual property protection is right for you. You may need a trademark instead – or even a patent. What’s the difference?
Trademark and copyright differences can get murky, so let’s first review the purpose and use of a patent. When you hear the word “patent,” you should think invention – everything from Post-it notes to animal ear protectors.
In 2013, the US Patent and Trademark Office granted more than 300,000 patents. The protection for inventors dates back to the ancient Greeks in 500 B.C. If you have a great invention, seek out a patent.
Artists, authors, and other creatives seek out copyrights for their work. A copyright covers physical works of art, music recordings of any kind, written works, and performance arts. The length of a copyright lasts for the lifetime of the author plus 70 years.
While a copyright technically is created as soon as you create a piece of intellectual property, without some form of proof, it’s very difficult enforce that protection in federal court. You also don’t need to have the signature (©) with your name and year created on all of your materials, but doing so could potentially help you win your case.
Business and product owners use trademarks for names, logos, and symbols that identify commercial goods or services. While they protect the brand name of the goods, they don’t protect the actual good or service from being replicated and sold under a different name. For example, McDonald’s might trademark the name “Egg McMuffin,” but it won’t stop other fast food restaurants from serving a ham, egg, and cheese sandwich on an English muffin and calling it something else.
This is where branding and marketing comes in. Your competitors might offer similar products, but your customers choose yours because of your recognizable brand and iconography.
Will A Domain or Business Name Give Me Trademark Rights?
In short, no. Simply having a domain or business name won’t automatically grant trademark rights. Let’s go over why.
As of 2013, there were 252 million domain names registered worldwide. Most of them were attached to legitimate businesses, but some are close enough to infringe on trademark rights. For example, Pinterest won a $7.2 million case against a cybersquatter last year for registering domains like Pinterests.com, Pinterost.com, and Pimterests.com. The cyber-squatter profited from traffic when visitors intended to go to Pinterest.com. Even though he registered the domain, he didn’t own the trademark and was infringing on previously established, trademarked content.
In early 2014, FiftyThree quickly learned the importance of trademarking your business or product name when Facebook announced its new “Paper” app. FiftyThree has an app called Paper and had only trademarked the phrase “Paper by FiftyThree.” Technically, the term “Paper” was wide open. FiftyThree filed a trademark application the day Facebook announced the new app, but it was too late.
An LLC doesn’t give you trademark rights, and you may be forced to change if another business believes you’re infringing on its rights.
When Choosing Your Mark
You may think that your business idea is brilliant, but the copyright office might think otherwise. There are two reasons your concept might get rejected. Both are because the US Patent and Trademark Office is trying to protect existing trademark content as well as what you created.
Will My Mark Be Easily Confused?
Let’s use Pinterest as an example, again. Its website is globally recognized and one of the fastest growing social networks. If someone wanted to trademark “PinInterest” – a small business that sells pins and broaches – it would likely get denied.
Traditionally, trademark requests are denied if the marks are similar or both names are in the same industry, and consumers would struggle to tell them apart.
How Strong is My Mark?
Weak marks tend to be common symbols or words that’ll likely get replicated in the future. While the previous section protected other businesses from having their trademarks infringed upon, this section focuses on your business. The Copyright Office wants to prevent others from infringing on your mark while also keeping the playing field open to new designs.
As a business, a rejection just means you need to go back to the drawing board.
Know the Four Different Types of Marks
There are four commonly used logo types, and some are stronger than others. The words, images, and design say a lot about your business and what it does, so consider these factors in your name and logo.
- Fanciful Marks: These are made up words or images with no other known meaning. Think about Star Trek and how the series’ creator, Gene Roddenberry, made up the Klingon language. Now there are entire books – even the Bible – translated into that language. What started as fanciful is now legitimate.
- Arbitrary Marks: This is the use of actual object names. Apple, Mosaic, and Virgin are all examples of taking an existing object – that has nothing to do with your product or service – and building your company around it.
- Suggestive Marks: These marks describe the quality of the goods without describing what they are. Coppertone is a common example. It doesn’t say that it’s tanning oil or sunblock, but the consumer understands the use when they read the name.
- Generic Marks: These are the weakest types of marks. Aspirin was originally trademarked by Bayer, but it’s been declared a generic term. Some brand names are generically used, and the companies have to protect them as much as they can. These include Band-Aid Brand Bandages and Kleenex Tissues. It’s common to call any bandage a Band-Aid and any tissue a Kleenex.
Your logo might not be commonly known now, but your business will grow and could one day be as recognizable as McDonald’s or Coca-Cola. Keep these points in mind when you file for a trademark and think about your designs. Check out the infographic above to get a fuller idea of these concepts and how they can be applied.