Trademark vs. Copyright Q+A
A reader writes: My business name is “[name] & [name].” I have searched and it is not already copyrighted. I’d like to get it protected because my fear is that someone will beat me to copyrighting it and then I’ll be screwed out of a name I love. How important is it to copyright and is there another way to protect my name without having to spend about two grand on it?
This is a great question. What it sounds like you really need is a trademark, not a copyright. Copyright registrations are usually reserved for things such as a photograph, a finished graphic design, worksheets, e-books and even a newsletter. (Don’t worry peaches- once your work is fixed in a tangible medium, aka you write it down, snap the pictures, etc. you already own the copyright. Read here to find out when you would want to register the copyright.)
What the heck is a trademark?…and Why Should I Care?
A trademark, sometimes called just a ‘mark,’ is anything that can be used to identify and distinguish your goods or services from that of someone else. The main purpose of a trademark is to identify the source of where a good or service came from. All those pretty logos, blog names, tag lines, unique catchy phrases and anything else that sets you apart and makes you immediately recognizable to the general public, aka your readers/customers/students/etc. is a trademark, even if it’s not registered.
A trademark can be basically anything that distinguishes who is providing a good or service. Even if the mark is temporary and part of a campaign, like the Anthropologie ‘A,’ or merely words, like the Rifle Paper Co. logo, it is a trademark. Can you guess who makes the item in the last image? You sure can, because the bottle shape is a registered trademark of Coke.
Here’s the good news: Simply using your name to advertise and sell products or services may be sufficient to establish trademark rights without registration.
Here’s the bad news: Your trademark isn’t registered, and there’s a lot of benefits to having a registered trademark. The law is not clear on internet user’s rights to geographical use. So, unfortunately, even if you technically have an online presence worldwide, someone else may be able to use your name in certain locations. With unregistered marks, it all comes down to who was using a name first and what location they used it in.
Let’s look at an example of why this is important. Say you are based in Texas. A huge state! Lots of trademark rights there automatically, right? Well, not quite. If you do not register your trademark at the federal level, and you only have clients or customers in Dallas, you could lose the mark to a later user everywhere but the DFW metroplex. Now, if you have a federal registration instead, you have exclusive rights to use and enforce your trademark anywhere in the United States.
How Important is it to Register my Trademark?
If you are a business just starting out, it probably isn’t that important to register your trademark. Heck, if you’re like most businesses I’ve worked with (or started) you will probably have a new name and logo in two years anyway. (We’ll talk more about the costs in a moment.) Ultimately, you as the business owner are the only one who can decide whether to register. You can always talk with an attorney, but until then, here are some benefits to registering your trademark:
You will prevent others from using your trademarked name on their similar goods and services so as to avoid consumer confusion. This will happen when someone goes to register their confusingly similar or same name and they are refused registration. Essentially, your name is yours.
You put everyone on notice nationwide that this is your name.
You look more legitimate as a business when you get to use the “®” registration symbol. It’s the difference between using “JaneDoe@gmail.com” and “Jane@JaneDoe.com.” You let everyone else in your industry know you’re serious about your name and game.
This is a big one- when you register your trademark, you get rights to sue infringers (i.e. copycats and meanie-heads) when they try to use your registered trademark.
If your mark is registered, infringing goods can be blocked from entering US customs.
You are entitled to statutory damages in instances of counterfeiting without having to show proof of actual damages. For example- think Coach purses. Where I grew up, both real and fake were quite abundant. Coach can sue the company Jane’s Fake Coach Purses for infringement and they will receive a certain amount of money as determined by law, without having to show how many more people would have purchased their real Coach purses had Jane’s Fake Coach Purses not been sold to those purchasers instead.
If you ever want to sell your company, it will be more valuable if you own federal registrations to your intellectual property (i.e. trademarks, patents and copyrights.)
The Money Issue
With all these great reasons to register your mark, what’s stopping you? If you’re like most business owners starting out, it’s the money, honey. Most of you are making a wager with your mark- if you register it, and fork over the money for registration, you get to keep your name indefinitely (aka until you let the mark expire.) If you don’t register, someone may come along and take it. Does it happen? Yes. Is it likely? Not in my opinion. Because you already own the mark and use it in connection with your goods or services, others in your industry are already on notice that you exist. If you would be absolutely devastated to lose the trademark, you may consider registration. If your business would not be decimated by someone else coming along and swooping off with your name for their goods or services, it may not be worth it to invest in a trademark registration just yet.
How Much Does It Cost to Register a Trademark?
It would be savvy to budget about $1500-$2500 for a trademark registration. The filing fee to register your trademark in one class of goods is at least $325. However, it is not advisable you do it by yourself if you’re not a trademark attorney because it will end up costing you way more in the long run if you file incorrectly— the government is not Walmart, there’s no getting a refund or store credit back no matter what once you file. Plus, with all that hard work and money, you want to make sure you’ve registered correctly. Filing in the wrong class of goods could be like not even filing at all. For those reasons, you will want to pay a filing fee plus attorney’s fees, which vary widely (the above estimate includes all of these.) However, the good news is that you can use an attorney anywhere in the United States for a federal trademark registration, so don’t be afraid to find someone in North Dakota or Florida, even if you live in Kansas.