Just as your business has a name, it also needs to have its own recognizable logo in order to establish a visual representation of your brand. The logo needs to perfectly reflect your company’s market niche and brand personality. And it should be unique enough to differentiate the company from the competition.
Because your name and logo are part of the DNA of your brand and your business, applying for registration of the copyright and trademark of both is an important consideration.
Do You Need to Register Your Trademark and Copyright In Your Name or Logo?
You certainly don’t have to register the copyright and trademark your company’s name or logo, in the United States; you own the copyright as soon as you put the original work on a pieces of paper or computer drive, and you won a trademark as soon as you use your name and logo for marketing your business. However, taking the extra step of registering both can give you important protection. Registering the trademark protects you from losing your rights to it if some other company uses the same or a highly similar name. By registering your trademark your name, you’re declaring exclusive rights to it for your line of business. And you’re preventing someone else from using your name for own in a similar business.
If you own a small business, which you operate in one state and don’t plan on expanding into new markets, you don’t need to register the trademark your name. You already have the right to use it in your market. On the other hand, if you plan to expand your business and reach out to new markets, it would be wise to register the trademark, so that no confusion arises if another company is using the same or a similar name as yours.
If for example, you start a blog and design a new logo for it, you will need to protect it. When it comes to registering your logo, simply by using it, you are creating a trademark. You are creating a visual representation of your brand since your logo is what your customers recognize you by and it’s what distinguishes you from your competitors. However, a trademark does offer more protection, since it prevents others from stealing your logo or using one that’s very similar to yours.
By simply using your company’s mark in commerce, without registration, you are establishing your “common law” rights. However, registering your trademark with the United States Patent and Trademark Office (USPTO), will provide a number of advantages.
Those advantages include:
- The legal presumption of your ownership of that mark nationwide, which is important if you plan to expand your business to other markets.
Therefore, copyrighting and trademarking your name or logo is certainly not required, but it can provide you with very useful benefits.
Why Are Trademarks and Copyrights So Important?
Once you create a website you should register your business name and make your logo. At that time you’ll need a copyright and trademark registration, because that will protect your name and logo from infringement. You need to make sure you secure the rights to your intellectual property and ensure no other company steals your idea and logo design, which is the primary idea behind copyright and trademark.
Both copyrights and trademarks provide you with an excellent way to protect your original ideas from being used as the property of someone else. This is, without question, the most important benefit they offer you.
Trademarks never expire, so as long as you’re using your trademark in commerce to identify the source of your products or services, people will identify your business by it. It’s a valuable asset and a very effective communication tool that can instantly communicate the image of your company and the products or services you offer to customers.
Trademarks offer far more protection than copyrights, but copyrights are extremely important for the protection of logos. Read on to explore in detail the difference between the two, so that you can better understand their importance and the impact they can have on your company.
The Difference between Trademarks and Copyrights
If you only copyright your name or logo without trademarking it, you cannot fully protect it against infringement. You’re only securing your rights to it since it is something you have created and it is your intellectual property. A trademark can protect your name and logo in case someone else wants to use them for their own purposes.
Also, you cannot really copyright a name, since copyright protects artistic works. This is exactly why you need to have a trademark that protects your company’s intellectual property, such as your logo. Following are the basic differences between copyrights and trademarks.
What Is a Trademark?
A trademark is a word, phrase, symbol or design, or a combination of them, that’s used to distinguish one manufacturer or seller from others operating in the same field of business and offering the same products or services. This means that you can register a trademark for your business name, logo, slogan, symbol, design and anything else that contributes to the brand identity of your company and the products or services you offer.
Your trademark is used to notify others that your company’s products, name, and logo are your property. You have the exclusive right to use them in connection to your services or products.
However, a trademark does not encompass the colors and designs of logos, since it doesn’t protect against unlicensed copying. It only refers to similarities between the company’s mark and others that closely resemble it. Therefore, it does not refer to the uses of the logo, but rather on the confusion in the marketplace, thus limiting what uses of the logo could be found infringing. This means that if someone else is using a similar logo design, it cannot refer to trademark infringement, but rather copyright infringement.
Simply using your trademark does not protect you from someone else in the same industry using your name or design—but registering your trademark does. In the case of someone else using the same name or design as your company’s, you’ll have to prove that you came up with it first, which is not possible if you haven’t registered it.
Without registering your trademark, you have no legal defense in case of a lawsuit. A registered trademark is a federal and legal registration of your company’s mark, so if anyone else wants to register a name or design that’s the same or too similar to yours, they will be guilty of trademark infringement.
What Is a Copyright?
A copyright protects original works, such as books, songs, paintings, photography, movies, choreography and other original works of authorship that are expressed in a physical form. According to the United States Copyright Office, copyright protects original works such as “literary, dramatic, musical, artistic and certain other intellectual works.”
Companies can copyright their audio and video materials, their books and reports, as well as any other original material they created, such as the design of their logo. It’s important to note that every original work is copyrighted at the moment of its creation. But registering it is what protects it from someone else trying to use it for their own purposes since you will have a document to prove your claim to it.
If anyone tries to steal your original creation, such as your logo, which is your own intellectual property, and use it as their own, you can sue them over the use of your property—but only if you have a copyright registration.
When you have a federally registered copyright, you can control exactly how your intellectual property is used, published and distributed, as well as exactly how it is presented to the public. And you can prevent anyone from using it for their own purposes. If someone tries to do so, you can sue them in a federal court, because you have claimed your right to your intellectual property by copyrighting it.
Now, there is a trick when it comes to the copyright protection of your logo. Your logo must have the required level of creativity in order for it to be actually considered copyrightable and for your copyright application to be approved. Therefore, many very simple logos are not considered copyrightable, since copyright does not protect your logo design, colors, and name. If your logo is a bit more artistic or ornate, you’ll find it easier to get your copyright registered.
The Confusion About Copyrighting and Trademarking Logos
Quite a lot of confusion arises when it comes to logos since many of them qualify for both copyright and trademark registration. Namely, if your logo qualifies for copyright as a piece of original artwork and is not used to identify your company, your logo can be copyright protected so that you can prevent unauthorized copying.
Additionally, if you want to prevent others from using your logo design and ensure that your company’s mark is distinguishable from your competitors, you should trademark your logo. A trademark can only prevent confusion your customers may experience if there’s a similar connection to your competitors, while a copyright protects against unwanted copying.
Therefore, logos can be a confusing area of intellectual property law, since trademark and copyright protection often overlap. The important thing to note is that neither copyright nor trademark excludes one another, so many business owners opt for protecting their company’s logo by both copyrighting and trademarking it.
How to Copyright and Trademark Your Name and Logo
There are certain steps you need to take in order to copyright and trademark your name and logo. Following is a brief outline of those steps.
How to Apply for the Copyright of Your Name and Logo
- Go to the online registration website and fill out the form for copyright. If your business is located in the United States, go to the official website of the United States Copyright Office. This is, of course, if you opt for an e-filing of your copyright application, but you can also submit your application in a paper form. However, applying for your copyright registration online is not only more convenient for you, but it also takes up to eight months for your application to be processed, as opposed to the processing time for paper forms, which can be up to 13 months. Regardless of the way you decide to apply for your copyright registration and the length of processing time, the date your registration becomes effective is the date the United States Copyright Office receives the submission of your application. Thus, if you want to publish your original work, you can do so without having to wait for your official certificate.
- When you arrive at the United States Copyright Office website, click on the eCO Online Registration button. This will lead you to a Form CO, which you need to fill out. The form will require your personal information, along with the name of the owner and creator, as well as the nature of the copyright documentation. For the copyright of a logo, you need to present a graphic representation of your logo.
- Next, you’ll need to upload your logo file and pay the registration fee of $35 with a credit or debit card, electronic check, or your deposit account with the United States Copyright Office. You will then receive a confirmation about your copyright registration, which will have a pending status for approval. As already mentioned, your copyright will be in effect as of the exact date you submit your application, not the date of approval.
How to Apply for a Trademark
Before trademarking your name or logo, you need to conduct a trademark search to make sure no one else is already using a similar one. You can do so with the help of a tool called Trademark Electronic Search System (TESS), which you can find on the official website of the United States Patent and Trademark Office.
Conducting a trademark search through the TESS Database is of crucial importance, because it can identify potential conflicts with an existing trademark of another company or a trademark for which approval is pending.
It’s also important because you’ll save money you would spend applying for the registration which may not be approved because it’s too similar to an existing trademark. Keep in mind that the United States Patent and Trademark Office does not search for conflicting trademarks until after you submit your application.
Once you have conducted your trademark search, you need to file a trademark application through the Trademark Electronic Application System (TEAS). You’ll be presented with a form to fill out—after you decide which application is right for you.
You can choose one of three different application forms: TEAS Plus, TEAS Reduced or TEAS Regular.
If you choose the “intent-to-use basis” (ITU) in your application, you will also need to pay an additional filing fee of $50 for at least one class of products or services.
After the submission of your registration, you’ll receive an email confirmation and all you have to do next is wait for the approval. In approximately three months after you submitted your application, it will be reviewed by an attorney who will determine whether or not your application meets all of the legal requirements necessary for the trademark approval.
It is important to monitor your application’s progress every 3-4 months and you can do so through the Trademark Status & Document Retrieval (TSDR).
How the Approval Process Works
Trademark registration paperwork
The United States Patent and Trademark Office will search through their trademark database to check for the availability of the mark you want to register only after you’ve already filed your application. They will inform you of the results in due time. If they happen to find the same or a highly similar mark to the one you are trying to register for the trademark, they will refuse your registration and you will not receive a refund.
Regardless of what form of application you choose, you must include the following information:
- A drawing of the trademark, in color, if applicable, exactly as the mark is used commercially
- The name, address, and email address of the trademark owner
- The filing fee
- The product or company the trademark identifies, proof that your company’s trademark is used in commerce
- The owner’s signature
If the examining attorney determines that your application meets the legal requirements for approval, he or she will approve your mark for publication in the United States Patent and Trademark Office’s weekly magazine, the “Official Gazette.” During the 30 days following publication, anyone who thinks they may have been damaged by the registration of your mark can file an opposition to the registration or a request for the extension of opposition time.
If such a case arises, an opposition will be held before an administrative tribunal within the United States Patent and Trademark Office, the Trademark Trial and Appeal Board (TTAB). If the opposition does not yield any results for the party that filed it, or if no opposition is filed whatsoever, your trademark registration will be approved and you will receive a certificate of registration by the United States Patent and Trademark Office.
Maintaining your registration is of crucial importance because you need to let the United States Patent and Trademark Office know that your trademark is in use. After your trademark registration is approved, you’ll need to file specific maintenance documents, because failing to do so will result in your trademark’s cancellation or expiration.
Also, the registration of your trademark lasts 10 years, but it’s mandatory that you verify it between the fifth and sixth year of its registration and between the ninth and tenth year of registration, to confirm it is still being used.
Enforcing Your Trademark and Copyright Rights
Once you have your trademark and copyright registered, you are responsible for enforcing your trademark and copyright rights to make sure you protect your name or logo against unauthorized adoption or copying by anyone else.
Although the United States Patent and Trademark Office will ensure no one registers the same or seemingly identical mark as yours, you are the one responsible for protecting the rights to your company’s intellectual property if anyone tries to use it. You have two legal options when taking legal action to protect your trademark against infringement. You can either send a cease and desist letter or opt for a trademark infringement lawsuit.
There are companies that can help you establish a “trademark watch” to ensure no other party tries to use your company’s mark. You can also hire an attorney to watch for a trademark infringement so that you can be advised and counseled on how to proceed properly to obtain the protection you need.
Speaking of hiring an attorney, many people decide to hire one to help them with the entire copyright and trademark process. However, not only is it not required to have one, but it is also not necessary since you can do absolutely everything on your own—not to mention that an attorney can be quite expensive.
Although an examining attorney with the United States Patent and Trademark Office will certainly help you out through the process of filing your trademark application, hiring your own trademark attorney can provide you with benefits if the need for legal advice arises. If you decide to hire a private trademark attorney before you apply for your application, the United States Patent and Trademark Office will communicate only with your attorney throughout the entire registration process.
Furthermore, a private trademark attorney can advise you on how to enforce your trademark rights in case of trademark infringement and what to do if someone claims you are infringing on their company’s mark.
Famous Cases of Copyright and Trademark Infringement
If you perhaps think that trademarking or copyrighting your company’s mark, i.e. your company’s name and logo, is not important, take a look at some famous cases of copyright and trademark infringement. You’ll see the importance of having a federal trademark and copyright registration, and the impact it can have on your company.
Nestle registered the Kitkat 4-bar shape in the UK in 2006 and Cadbury, who sells a KitKat-like bar product, attempted to invalidate the registered trademark. Nestle won on the grounds that the Kitkat 4-bar shape had been used by Nestle for so long that consumers associate the shape with the brand
Gucci sued Guess over a diamond-patternad G logo found on clothing made by both brands Gucci won their case in 2012 where courts in New York ordered Guess to pay $4.7 million in 2013, Guess won their counterclaim in Italy where the court granted Guess’s requests to have three of Gucci’s registered trademarks nullified, including the diamond-pattern, G logo, and a flora pattern
BeautyBank a subsidiary of Estee Lauder, filed and won a trademark infringement lawsuit on the grounds that Ageless Fantasy’s EAU FLIRT-branded perfume advertising was in bad faith Ageless Fantasy’s perfume claimed it was clinically proven to make men flirt with women, which competed against BeautyBank FLIRT line of cosmetics
Apple Corps vs Apple Inc.
The Beatles came up with the trademark for the word “apple” eight years before Steve Jobs introduced his Apple Inc. to the world. The Beatles sued Apple Inc. and the battle in court spanned a number of years.
Ultimately, Apple Inc. paid The Beatles’ music company, “Apple Corps,” a cash settlement and agreed to stay out of the music business. However, with the introduction of iTunes, the battle started all over again. A settlement was reached after Apple Inc. agreed to buy the Apple Corps’ trademark rights and then license them back to the company, resulting in The Beatles losing the Apple battle.
Jack Daniel’s vs Patrick Wensink
This case actually played out well, without the hassle of a lawsuit. Patrick Wensink published a book, the cover of which was a dead ringer for the Jack Daniel’s well-known trademark design. The famous company sent a cease and desist letter to Wensink, which might be the nicest cease and desist letter ever. Jack Daniel’s proposed to Wensink that he might consider changing his cover and, as a sign of gratitude and goodwill, the company would even contribute financially toward designing the new cover. What’s more, Jack Daniel’s Properties didn’t even ask for the book to be taken off the shelf.
Patrick Wensink publicized the letter on his website, after which it went viral and won Jack Daniel’s an incredible amount of positive publicity. As you can see, a case of trademark infringement can be solved without having to go to court. You simply let your marketing department handle it all.
Marvin Gaye vs Pharrell Williams vs Robin Thicke
One of the recent cases of copyright infringement took place in March 2015, when a jury found that Pharrell Williams and Robin Thicke’s famous song “Blurred Lines” was a copy of Marvin Gaye’s song “Got to Give It Up.” The lawsuit resulted in Williams and Thicke paying Marvin Gaye’s children nearly $7.4 million.
Therefore, having a registered copyright protection can help you immensely if someone tries to steal your company’s mark and use it as their own. When you have a registered copyright, you can protect your company against unauthorized copying of your intellectual property.
Although both copyright and trademark can protect your intellectual property, they offer different kinds of protection, as they protect different types of assets. A copyright protects literary and artistic works, while a trademark is more focused on protecting items that define and identify a company’s brand, such as a logo.
Your company’s assets don’t represent only your money. They also include intellectual property that can boost your company’s worth, so you must protect your rights to that property to ensure a third party doesn’t use them without permission. Copyright and trademark provide you with that kind of protection, so it is imperative that you register for both and make sure you protect your brand.