The patent is issued in the name of the United States under the seal of the United States Patent and Trademark Office, and is either signed by the Director of the USPTO or is electronically written thereon and attested by an Office official. The patent contains a grant to the patentee, and a printed copy of the specification and drawing is annexed to the patent and forms a part of it. The grant confers “the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” and its territories and possessions for which The term of the patent shall be generally 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application under 35 U.S.C. 120, 121 or 365(c), from the date of the earliest such application was filed, and subject to the payment of maintenance fees as provided by law.
The exact nature of the right conferred must be carefully distinguished, and the key is in the words “right to exclude” in the phrase just quoted. The patent does not grant the right to make, use, offer for sale or sell or import the invention but only grants the exclusive nature of the right. Any person is ordinarily free to make, use, offer for sale or sell or import anything he/she pleases, and a grant from the government is not necessary. The patent only grants the right to exclude others from making, using, offering for sale or selling or importing the invention. Since the patent does not grant the right to make, use, offer for sale, or sell, or import the invention, the patentee’s own right to do so is dependent upon the rights of others and whatever general laws might be applicable. A patentee, merely because he/she has received a patent for an invention, is not thereby authorized to make, use, offer for sale, or sell, or import the invention if doing so would violate any law. An inventor of a new automobile who has obtained a patent thereon would not be entitled to use the patented automobile in violation of the laws of a state requiring a license, nor may a patentee sell an article, the sale of which may be forbidden by a law, merely because a patent has been obtained.
Neither may a patentee make, use, offer for sale, or sell, or import his/her own invention if doing so would infringe the prior rights of others. A patentee may not violate the federal antitrust laws, such as by resale price agreements or entering into combination in restraints of trade, or the pure food and drug laws, by virtue of having a patent. Ordinarily there is nothing that prohibits a patentee from making, using, offering for sale, or selling, or importing his/her own invention, unless he/she thereby infringes another’s patent which is still in force. For example, a patent for an improvement of an original device already patented would be subject to the patent on the device.
The term of the patent shall be generally 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application under 35 U.S.C. 120, 121 or 365(c), from the date of the earliest such application was filed, and subject to the payment of maintenance fees as provided by law. A maintenance fee is due 3 1/2, 7 1/2 and 11 1/2 years after the original grant for all patents issuing from the applications filed on and after December 12, 1980. The maintenance fee must be paid at the stipulated times to maintain the patent in force. After the patent has expired anyone may make, use, offer for sale, or sell or import the invention without permission of the patentee, provided that matter covered by other unexpired patents is not used. The terms may be extended for certain pharmaceuticals and for certain circumstances as provided by law.
Intellectual Property Lawyer
When you need help with business law and IP law, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Copyright is a form of intellectual property (often referred to as “IP”). Other forms of intellectual property include trademarks, designs, and patents. These categories refer to different kinds of ideas which may not exist in a physical form that can be owned as property in the traditional sense, but may nonetheless have value to the people who created them. These forms of intellectual property can be owned in the same way that physical property is owned, but – as with physical property – they can be subject to dispute and proper documentation is required to prove ownership.
The different types of intellectual property divide into these categories as follows:
• Copyright: copyright protects creative output such as books, poems, pictures, drawings, music, films, etc. Any work which can be recorded in some way can be protected by copyright, as long as it is original and of sufficient length. Copyright does not cover short phrases or names.
• Trademarks: trade marks cover words and/or images which distinguish the goods or services of one trader from another. Unlike copyright, trademarks can cover names and short phrases.
• Designs: designs cover the overall visual appearance of a product, such as its shape, etc.
• Patents: patents protect the technical or functional aspects of designs or inventions.
The specifics of the legal protection surrounding these various forms of intellectual property will vary from nation to nation, but there are also generally international conventions to which a lot if not most of the nations of the world subscribe. The information provided below outlines the common situation in many countries but you should be aware that this may not reflect the exact situation in every territory.
The two types of intellectual property most relevant to writers are copyright and trademarks. If a writer has written a novel, a short story, a poem, a script, or any other piece of writing then the contents themselves can be protected by copyright. The title, however, cannot be protected by copyright as it is a name. An author may therefore feel that they wish to consider protecting the title of their work by registering it as a trade mark, if they feel that it is particularly important and/or more valuable in itself than the cost of registering a trade mark.
If a writer wants to register the copyright for their work, or register the title of their work as a trade mark, there are generally registration fees to be paid. Despite the fact that copyright covers long works that could be hundreds of thousands of words long, while trademarks cover single words and short phrases, the cost for registering a trade mark is likely to be many times higher than that for registering a work for copyright protection. This is because trademarks must be unique and are checked against existing trade marks for potential conflicts. While works to be registered for copyright must also not infringe existing works, it is not practical to check the huge volume of new works to be registered for copyright against the even larger volume of all previously copyrighted works. Copyright registration therefore tends to simply archive the work in question as proof of the date at which the person registering the work was in possession of it.
In the case of both copyright and trade marks the law generally provides some protection even without any kind of registration, but registration provides the owner of the intellectual property with greater and more enforceable protection. In the case of copyright, the creator of a work usually automatically owns the copyright as soon as the work is recorded in some way (i.e. by writing it down or recording it electronically, etc.), however these rights can be difficult to prove if disputed, and therefore many countries (such as the United States) also offer an internal country-specific means of registering works. Some countries, like the United Kingdom, do not offer any such means of registration, however an international registration is available through the Intellectual Property Rights Office’s Copyright Registration Service, and can be used regardless of any country-specific provisions. This can help protect copyright in all of the nations which are signatories of the Berne Convention (click here for a full list).
In the case of trade marks, the symbol “™” can be applied to any mark which is being used as a trade mark, however greater protection is provided if this mark is registered, in which case the symbol “®” can be applied to the mark. It is often illegal to apply the “®” symbol to a trade mark which has not been registered. There are also options for international registrations of trade marks, which are administered by the World Intellectual Property Organization, however applications cannot be made to the WIPO directly – applications must be made through the relevant office of the applicant’s country
Proper use of the copyright symbol
This page explains how to apply copyright notices to your work, and what the requirements and implications are.
You can place the copyright symbol on any original piece of work you have created. The normal format would be to include alongside the copyright symbol the year of first publication and the name of the copyright holder, however there are no particular legal requirements regarding this. While it has historically been a requirement in some jurisdictions to include a copyright notice on a work in order to be able to claim copyright over it, the law does not allow such restrictions, and so any country signed up to the convention no longer has this requirement. However, in some jurisdictions failure to include such a notice can affect the damages you may be able to claim if anyone infringes your copyright.
A similar situation exists in relation to the phrase “All Rights Reserved”. This phrase was a requirement in order to claim international copyright protection in countries signed up to the 1910 Buenos Aires Convention. However, since all countries signed up to the Buenos Aires Convention are now also signed up to the Berne Convention (which grants automatic copyright) this phrase has become superfluous. The phrase continues to be used frequently but is unlikely to have any legal consequences.
Should I Copyright or Trademark My Logo?
There’s a ton of confusion around the question, “Can I copyright my logo?” To answer this question appropriately, it’s important to first identify the scope of protection you may be seeking, by distinguishing between trademarks and copyrights. Each type of legal registration serves different purposes, are obtained differently, and provide different types and levels of protection.
Generally, if you’re using your logo in relation to your business and you’re selling goods or services utilizing the logo, filing a trademark application should be at the top of your priority list. A trademark registration protects your consumer’s recognition of your logo identifying you as the source of your goods or services. You don’t want your consumers confused about this.
On the other hand, if your logo is unique and utilized in other ways aside from just selling your goods or services, you may want to also consider filing a copyright application for additional protection. A copyright registration protects the distinctive nature of your logo from being copied; as though it were a piece of art.
Let’s take a minute to break down the differences between copyright protection and trademark protection so that we can help you identify the protection you need.
Both forms of protection are usually available for a logo, protect different against different kinds of risks, and, depending on the circumstances, can likely be done properly by a good IP lawyer for under $800 or so. You can also get both forms of protection for $0 due to the fact that they both arise automatically under the law upon creation (copyright) and use in commerce (trademark). However, the benefits of registering your trademark or copyright — which is where the money comes in — usually are well worth the relatively small investment of money for a logo that will be a basis for a business’s branding.
The one thing I would add to James’ answer is that, if the logo was not created by you or an employee of you or a company you own, you’ll need to have whoever designed it sign an assignment / work-for-hire agreement to transfer the copyright to you. The general rule is that when a third party creates a copyrighted work, that person or company owns the copyright in the work unless the right kind of written (not oral) agreement is signed. This is so even if you paid the person money for the logo design and both of you believe that the logo now belongs to you. It’s a somewhat counter-intuitive rule that trips up a lot of people’s efforts to protect their IP.
What Does a Trademark Protect?
A trademark is typically a word, phrase, symbol, design, or combination of those, that identifies and distinguishes the source of goods or services in the market. Your logo is a trademark that identifies the goods or services you’re selling with your brand. Filing an application to register your trademark with the U.S. Trademark Office allows you to protect your trademark and prohibit others from using it on similar goods or services.
Your trademark distinguishes your goods or services from the competition. Consumers develop goodwill and consumer recognition when they see your trademark and want to buy your goods, or use your services again. Think Disney®, Toyota®, Apple® or Coke®. As the consumer, you have certain expectations and emotions pertaining to each brand, and your buying process is dependent upon your perception of the brand.
Typical items you might see with trademark protection include:
•logos
•business
•slogans
• taglines
Since trademarks are used to identify a company or brand, it makes the most sense to file for trademark protection on the brand name, logo or image. By doing this, you can keep other people from using your logo, or one that is confusingly similar, to sell the same or similar things that you are selling. Trademarks protect anything that is perceived as confusingly similar in its sight, sound or meaning to your consumer. So, if you are investing in a brand image, you should seek a trademark registration to protect it. But, your image may also qualify for copyright protection as well.
What Does a Copyright Protect?
Copyrights can be obtained to protect an “original work of authorship fixed in a tangible medium of expression” from being directly copied by someone else. If your logo is an original, unique design creation that you’re using in other ways aside from selling your goods and services (i.e. your business provides training services but you also have your logo on t-shirts and other swag), you might want to also file a copyright application.
Generally, Copyrights protect things like pictures, songs, and software code from being copied by someone who you don’t want copying it. The copyright has no relationship with the goods or services being sold with it. While you may be able to copyright your logo, copyrights also protect:
If your logo is an original work of art that you have the rights to, like a computer rendered design, a drawing, photograph or painting, you could copyright it.
Free Initial Consultation with Logo Copyright Lawyer
When you have designed a logo or other intellectual property and you want to protect it, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
Any design, logo, symbol, name, or word that distinguishes a product or service from those offered by its competitors is a trademark. If you own a trademark, you can prevent others from using it. The benefit of having a trademark is that it represents your brand and over time may come to stand for quality.
You own a trademark if you are the first to use it in commerce, even if the word or mark in question is not registered.
When you trademark a word, you give a person or company exclusive rights to connect one brand with that word. You can trademark a word that identifies your company or your products.
Register your trademark with the U.S. Patent and Trademark Office (USPTO) to protect your trademark throughout the United States. A trademark registered with the USPTO is a registered trademark and gets marked with the registered trademark (®) symbol.
You don’t have to register a word with the USPTO to get trademark status. A word is a trademark if that word identifies a brand, regardless of whether the word itself is registered. However, unregistered trademarks with the USPTO are only trademarked within the company’s geographical area. Trademark rights for an unregistered mark belong to the company that first used the mark. Use the trademark symbol (TM) for a trademark that isn’t registered with the USPTO.
How to Trademark a Phrase or Word
• Trademarks offer legal protection for the identifying features of commercial products. The feature can be the name of the product – its brand name – or a short phrase associated with it, like Maxwell House’s “Good to the last drop,” a trademark currently owned by Kraft Foods. Trademarks can be other features as well, such as a distinctive sound, shape or color combination associated with your product. Obtaining a trademark is straightforward.
You don’t necessarily have to do anything special to trademark a word or phrase. The simple act of using the word or phrase in association with your commercial product is enough to confer trademark protection. No registration is required and there is no paperwork necessary to bring your trademark into being.
Although your trademark comes into existence even without registration, the legal protection it offers is not quite at full strength. If another product infringes on your trademark (that is, uses the same name or phrase without your permission), or if you are accused of infringing on someone else’s trademark, then the lack of registration can be detrimental.
A registered trademark has a clear paper trail, an official record of trademark ownership and the length of time it’s been in use. The record is valuable evidence in case you have to argue trademark priority in a court case over ownership.
Registering Your Trademark
You register trademarks with the U.S. Patents and Trademarks Office. The process for registering with the USPTO involves a fee and a good deal of paperwork. It often pays to hire a trademark specialist to assist with the registration.
The Trademark Registration Process
The USPTO website provides comprehensive guidance for registering your trademark. In essence, though, the steps are:
Check the trademark database
Search the trademark database and other sources of product information to make sure your trademark won’t conflict with one that is already in use. Products can carry similar (even identical) names as long as there is no likelihood of confusion. Acme Exterminators and Acme Catering can both use the Acme name, as the similarities of the names are not likely to cause confusion.
Complete the paperwork
Fill out the trademark application, either on your own or with the assistance of a specialist. The application can be prepared and submitted online, or submitted to the USPTO on paper; the latter method generally takes longer for the Trademark Office to process.
Pay the fee
Pay the fee, typically in the $200 to $300 range, though it varies according to the type of application.
Why Is Knowing How to Trademark a Word Important?
When you trademark a word, your competitors can’t use that word to identify their products. A trademark:
• Sets companies apart from one another
• Protects brand integrity
• Prevents unfair competition from customer confusion or deception
Registering a trademark with the USPTO lets you take legal action against companies who unjustly use the mark. You can sue for damages, attorney fees, and court costs if someone illegally uses your trademark. This illegal use is a trademark infringement.
When you trademark a word, you don’t protect it from use in everyday speech use or informational material. A trademark also doesn’t stop industries that don’t compete with your business from using the word.
When Should You Trademark a Word?
Trademark a word if it identifies your brand. You want to protect your brand and set your products apart from competitors’ products.
USPTO registration isn’t required for trademark status. However, a trademark gives you these benefits:
• Nationwide ownership
• Public notice of ownership
• Legal protection against infringement
• Use of the registered trademark symbol
• Listing in USPTO databases
• Ability to apply for trademark status in other countries
How Do You Create a Strong Trademark for a Word?
You need to have a strong word for your trademark. Made-up words and words that aren’t directly related to your product are the strongest words to trademark. Consider some word types when creating your trademark:
• Invented words: You can’t use these words in any context other than with your brand. For example, Adidas has no meaning other than the name of the company.
• Arbitrary words: Arbitrary words are words that exist but aren’t related to your product. An example of an arbitrary word trademark is bumblebee for Bumble Bee Seafood.
• Suggestive words: Suggestive words speak to a trait of your product but don’t directly refer to it. For example, the word Patagonia has no direct connection to outdoor clothing, but the word suggests imagery of outdoor adventures. Suggestive words are good trademarks, but they are less strong than invented or arbitrary words.
• Descriptive words: Descriptive words describe how you use a product. Descriptive words are difficult to trademark. An example of a descriptive word is Red Delicious for a type of apple.
• Generic words: Generic words that name a product can’t be trademarked. So while Apple Inc. can trademark Apple when talking about its products, a company that sells apples can’t trademark the name Apple.
How Do You Protect a Trademark for a Word?
When you trademark a word, you gain rights over the word. But you can lose the rights if you don’t protect your trademark.
1. Enforce Proper Usage
You should enforce proper capitalization and use of the registered trademark symbol wherever your trademarked word appears. If you don’t enforce proper use of your trademark, the word could become a generic name for the product. If a word becomes generic, you can lose the word’s trademark.
Dumpster is an example of a word that became generic and lost its trademark. Dempster Brothers created the word dumpster for their trash disposal brand. Over time, the word became a generic term for garbage containers.
Failure to enforce proper use of and attribution for your trademarked word, including trademark symbol usage, can also cause trademark dilution. Trademark dilution occurs when a trademarked word becomes less unique, gets adopted as a household name, or results from both situations. Your trademarked word could also get used in another industry. Dilution is only considered a type of trademark infringement for famous trademarks.
Language is ever evolving, shaped by centuries of iteration, elimination, and re-creation. Words fall by the wayside and some, for better-or-worse, storm our vernacular over the course of a matter of months. To a degree, however, many are unaware of how greatly our language is influenced by one of those most ubiquitous institutions in the world: commerce.
Throughout history, words have taken on meaning and left it behind, becoming “genericized” in our everyday language. Many of these were once trademarks; brands championed by entrepreneurs and industry tycoons whose achievements have so permeated our culture that they cease to belong to a single entity.
Kerosene
Of the myriad words in our language that used to carry a royalty fee, several were born at the advent of the Industrial Revolution. With savvy businessmen eager to profit from this innovative age, it is no wonder that many common items became the subject of trademark registrations. In 1854, Abraham Gesner, in conjunction with the North American Gas Light Company and the Downer Company profited from the trademark of the term Kerosene. The term, likely derivative of the Greek term for was, ceros, is now used for any mixture of petroleum chemicals used for heating, fuel, or as an insect repellent.
Escalator
In 1897, Charles See Berger redesigned a Coney Island novelty ride that transported passengers up a moving staircase. Manufactured by Otis Elevator Company, the Escalator became a part of the vernacular before being genericized in 1950 when the patent was lost.
Touch-tone
Silicon Valley’s Intellectual Property disputes over website names, brands, and even color schemes are a distant grand-child to the technology registrations of the mid-to-late century. One such mark is “touch-tone”, a technology invented in 1962 and manufactured by Bell Telephone. The term appeared in the 1960s as a trademark but did not receive widespread use until the 1980s.
Videotape
Another now-archaic technology that permeated prose was the “videotape”. Invented in 1951 by Charles Ginsburg and his research team and manufactured by Apex, the term simply would not escape the home media conversation until the advent of DVDs in the late 1990s.
There are Limits
On the other side, as with trademarking quotes, the USPTO will reject applications for common phrases under certain circumstances. In 2014 the USPTO rejected nine applications for the phrase BOSTON STRONG, which grew from the 2013 Boston Marathon bombing. In rejecting, the USPTO wrote that “consumers are accustomed to seeing this slogan or motto commonly used in everyday speech by many different sources.” They decided similarly in 2002, when many companies filed trademark applications for the term “LET’S ROLL”, which was associated with the passengers on United Airlines Flight 93 on September 11, 2001.
Phrases that become popular during news events are not the only common words and phrases the USPTO might reject. In 2007 the USPTO rejected a trademark application for the word PODCAST. In their final Office Action, they stated: “The mark immediately describes and names the characteristics and features of the goods. Accordingly, the mark is refused registration on the Principal Register under Section 2(e) (1) of Trademark Act.” Since the term podcast has acquired a meaning of its own, no one can trademark it by itself when used in connection with podcast-related products or services. There are a number of active trademarks that use the word PODCAST, but they all contain the standard disclaimer: “NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE ‘PODCAST’ APART FROM THE MARK AS SHOWN”.
Trademark Attorney Free Consultation
When you need legal help with a copyright, trademark or other intellectual property in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
“Copyright” is actually a series of rights that the author of an original creative work. Rather than bore you with a book-length post about copyright, I’ll give you the greatest hits: • Copyright protect creative works like artwork (including your logo), photographs, music composition, sound recordings, software code, and even dance choreography
• Copyright DOESN’T protect ideas, processes, facts, and other intangible things.
• This separation between ideas and the expression of their ideas is a huge deal in copyright. The idea for the story is not protected, but how you specifically expressed those ideas in writing is protected by copyright law.
• Some of the exclusive rights you get under copyright include the right to make copies, to create “derivative works” (think sequels and spinoffs), to publicly perform or display, and to do things like translations and adaptations to other media
What Does Trademarking a Name Cost?
Filing a trademark for your business name with the U.S. Patent and Trademark Office (USPTO) will cost between $225 and $600, plus legal fees. You can register with most states for $50-$150 if you don’t want protection outside your state.
Trademark protection covers the designs, symbols, words or phrases that identify your business as a source of products or services and sets them apart from competitors’ offerings. Business names, logos, and product labels can all be trademarked. If your company sells services instead of goods you would technically use the term “service mark” instead of trademark, but most people use the word “trademark” when talking about services as well as goods.
Federal Trademark Information
Note: Each application covers one class of business, so if your business sells different types of goods and services (like movies and posters) you might need to pay the following fees more than once.
E-file fees: If you file your federal trademark online at the USPTO website, you can use the Trademark Electronic Application System (TEAS). A regular TEAS has a $400 fee, but if you can use the TEAS Reduced Fee (TEAS RF) form the fee is only $275. If your application is very simple you might be able to use the TEAS plus form for just $225.
Paper filing fees: Filing a paper form with the USPTO is more expensive at $600.
Most businesses choose federal protection, but if your business is much localized you might be content with only a state-level trademark.
Corporations and LLCs: When you form your business entity with the state, business name registration is included. Fees to form a corporation or LLC vary by state but are usually less than $150. Sole proprietors and partnerships: If you register a “fictitious name” form with the state, county, or city, your business name is registered at the same time. Costs vary by region, but $50–$150 is typical. If you use your legal name as your business name, you won’t be required to register your name and will need to apply to your Secretary of State if you want a trademark at the state level.
• The right to record the trademark with the U.S. Customs and Border Protection Service to block counterfeit products at the border
• The right to register your business name in foreign countries
Important Data on Name Trademarking Costs
• 50–80 percent: The number of filings rejected on their first try, usually because the forms aren’t completed properly or the filer didn’t do a full search to see if anyone else was using their name.
• $400–$500: What some discount legal sites charge for trademark services? This fee covers helping you with your application only. It doesn’t include any support if your application is rejected and may not include a search.
• $1000–$2000: Typical legal fees charged by an experienced trademark attorney.
• Six months to three years: The average amount of time it actually takes to fully complete a trademark filing.
Other Costs of Trademarking a Name
If you haven’t started doing business under the name you want to trademark, the filing will involve some extra steps and cost. About 12 weeks after you apply, the USPTO will send you a notice. You then have six months to either file a Statement of Use (with a $100 fee) accompanied by proof that you’ve started using the business name, or if you haven’t started transacting business yet you can request a six-month extension. If you use an attorney, you’ll also need to pay legal fees to prepare the statement and proof that you are using the name. The legal fees range between $250 and $700.
Common Mistakes
• Choosing an attorney who doesn’t have specific trademark experience
• Not doing enough research to make sure your business name isn’t similar to someone else’s
• Not choosing the correct class of business to file under
• Not applying for more than one class if you have different business activities • Trademarking your logo but not your business name
• Trying to register a business name the USPTO considers too generic, like “fine dining” or “Used Cars”
• Trademarking your URL with the suffix; if your website is sparklewidgets.com, you should usually register Sparkle Widgets or Sparkle widgets as your business name so you can protect yourself more broadly
Global Business
• Foreign businesses that want to trademark their names in the United States have three choices: a foreign application, a foreign registration, or a Madrid Protocol application.
• U.S. businesses that do business overseas can register their names with the government in each country where they plan to have a presence.
• You can record your trademarked name with the U.S. Customs and Border Protection Service to stop counterfeit goods bearing your name at the border.
Reasons You Might Not Trademark Your Business Name
Your business name is protected the moment you start using it, even without being registered, as long as it doesn’t already belong to someone else. Common law trademark protects you locally from another business using your name. If you’ve registered your business entity or fictitious (DBA) name with the state, you already have some federal protection, too.
You can copyright a band name. This notion arises from laymen using the terms “copyright” and “trademark” interchangeably when they are really distinct legal terms. In any case, protecting intellectual property, such as a band name, might cost only a few hundred dollars for the application, but thousands more in legal fees.
Identification
You cannot copyright a band name because copyrights only apply to original works, such as creating a song, rather than ideas or facts. Instead, you would trademark a band name as a way to distinguish your band from another one. You can copyright something related to your band’s name, such as a logo, according to the U.S. Copyright Office. As of the time of publication, the basic online registration fee for a copyright is $25.
It is highly suggested that you research your band name before attempting to trademark it in case another band uses and has registered the name. The typical fee for an attorney to file a trademark application is between $300 and $500, as of the time of publication. However, you might incur hundreds of dollars in additional legal fees for an attorney to research your band name or if the patent office requires additional information or sends other communications the lawyer needs to handle.
Use the U.S. PTO electronic trademark search system for free to check if you someone has registered the same or similar trademark. You can save money and time by only registering a trademark with the state. Technically, just using a band name usually creates a common law trademark, but offers far fewer protections than registering the name at the state or federal level. However, because of widespread use of the Internet, common law and state trademarks usually are less preferential than a federal trademark or copyright. As always, you should speak to an attorney because a few hundred dollars to secure your rights now can save headaches down the road if you become hugely popular. Why should you register your copyrights?
So here’s the deal:
The 2 requirements are:
1. That it’s an original creative work (the bar for this is very low)
2. That it is “fixed” in a “tangible medium” – this means, essentially, that it’s on paper or saved as a digital file, a video, or an audio recording. Things that are just existing inside your brain don’t count.
Now, you’ve got copyright rights – what can you do with it?
• It puts the public on notice that you’re claiming rights over that particular thing
• It serves as evidence that your copyright rights are valid (if you register within 5 years of publication)
• It allows you to take advantage of something called “statutory damages” if you register within 90 days of publication. This means that you don’t have to prove how much you’ve been damages when filing a lawsuit, which can come in handy in many cases. It also allows you to seek payment for your attorney’s fees and costs from the infringer.
The filing fee for a copyright registration varies. It’s a lot cheaper than filing a trademark application, at the very least.
Here are the details:
1. For most applications, the fee is $55 to register a copyright
2. In cases where there is only one author who is the one who actually created the work, the fee is only $35
That lower fee most likely applies to a logo made for a sole proprietorship business. But if you’ve created the logo on behalf of an LLC you own or work for, the higher fee is going to be applicable.
Can’t you just do it yourself? Yes, you can do it yourself, but the process can be a bit confusing. There’s a good amount of jargon and choices you need to make.
Starting with the type of application you’re filing in the first place. If you choose the wrong one, that could invalidate the whole application.
The process has a number of other potential wrinkles, as well.
It usually comes down to a balance – you need to weigh how much time it would take for you to understand everything and learn the process, versus just paying someone to take care of it for you.
Copyright Lawyer Free Consultation
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The Lanham Act (otherwise called the Trademark Act of 1946) is the government rule that oversees trademarks, administration marks, and out of line rivalry. It was passed by Congress on July 5, 1946 and marked into law by President Harry Truman. The Act produced results on July 5, 1947. A government resolution managing how trademarks are utilized in business exercises. The motivation behind the Lanham Act is to guarantee trademarks are select to their clients just as lessen customer disarray when distinguishing surely understood products or administrations. Otherwise called the Trademark Act.
Some examples of trademarks include Toyota (Cars and Trucks), Nike (Apparel), and Microsoft (Software).
What is Trademark?
Basically a brand name, a trademark secures words, names, images, sounds or hues being utilized by one business to sell an item from being utilized by another.
Organizations spend a lot of cash to develop their brands, logos or trademarks. It bodes well that they ought to secure their speculation by picking up the selective legitimate appropriate to be the main substance to be permitted to utilize these.
To win on a case of trademark encroachment, an offended party must set up that it has a substantial imprint qualified for insurance; and that the litigant utilized the equivalent or a comparative imprint in business regarding the deal or publicizing of products or administrations without the offended party’s assent. The offended party should likewise demonstrate that litigant’s utilization of the imprint is probably going to cause disarray with regards to the alliance, association or relationship of the respondent with offended party, or with regards to the beginning, sponsorship, or endorsement of respondent’s merchandise, administrations or business exercises by the offended party. See 1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir. 2005). Along these lines, “use,” “in business,” and “probability of disarray” are three particular components important to build up a trademark encroachment guarantee.
“Use”
” Use” of a trademark by an asserted infringer must be set up as a limit matter. Any number of exercises might be “in business” or may make a “probability of disarray.” However, without the utilization of a trademark, such exercises don’t disregard the Lanham Act. The utilization necessity serves a restricting capacity by anticipating trademark holders from declaring a summed up ideal to control language. Some direct through which a vendor or maker tries to benefit from a contender’s name acknowledgment does not add up to “use” for motivations behind a trademark encroachment guarantee. For instance, “spring up” promotions on the Internet or explicit item position in retail locations might be offensive to the holder of a trademark, however, such uses would not disregard the Lanham Act. See 1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir. 2005).
The Lanham Act Elements
To win on a false-publicizing guarantee under the Lanham Act, an offended party must fulfill the accompanying components: (1) a false or deluding proclamation of truth; that is (2) utilized in a business notice or advancement; that (3) hoodwinks or is probably going to betray in a material manner; (4) in interstate trade; and (5) has caused or is probably going to make focused or business damage the offended party.
False or Misleading Statement of Fact
Two types of advertising claims are actionable under the Lanham Act: (1) statements that are literally false; and (2) statements that are literally true, but likely to mislead, confuse, or deceive.
Likelihood of Confusion analysis under the Lanham Act
Likely to cause perplexity, or to cause botch, or to swindle with regards to the alliance, association, or relationship of such individual with someone else, or with regards to the source, sponsorship, or endorsement of his or her merchandise, administrations, or business exercises by someone else . . . will be at risk in a common activity by any individual who trusts that the individual in question is or is probably going to be harmed by such act.”).
To win on a case of trademark encroachment under § 1114, a gathering must demonstrate: (1) that it has a protectable possession enthusiasm for the imprint; and (2) that the respondent’s utilization of the imprint is probably going to cause buyer perplexity. Dep’t of Parks and Recreation v. Bazaar Del Mundo Inc., 448 F.3d 1118, 1124 (Ninth Cir. 2006). An offended party must have a “substantial, protectable trademark” before guaranteeing trademark encroachment. Zobmondo Entertainment, LLC v. Falls Media, LLC, 602 F.3d 1108, 1113 (Ninth Cir. 2010).For a trademark to be “valid and protectable,” it must be “distinctive.” Id. A trademark’s distinctiveness measures its primary significance to the purchasing public. Quicksilver, Inc. v. Kymsta Corp., 466 F.3d 749, 760 (9th Cir.2006) (quotation marks omitted).
Although the plaintiff in a trademark action bears the ultimate burden of proof that his or her mark is valid, federal registration provides “prima facie evidence of the validity of the registered mark and of the registration of the mark, of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the registration,” and entitles the plaintiff to a “strong presumption” that the trademark is protectable. 15 U.S.C. §§ 1057(b), 1115(a); Zobmondo Entertainment, LLC, 602 F.3d at 1113-14.
The focal component of trademark encroachment is the “probability of perplexity” and the “issue can be recast as the assurance of whether the likeness of the imprints is probably going to confound clients about the wellspring of the items.” GoTo.com, Inc., 202 F.3d at 1205 (references and quotes overlooked). In assessing the probability of disarray between related merchandise or administrations, the accompanying elements (alluded to as the Sleekcraftfactors) are considered: (1) quality of the imprint, (2) vicinity or the merchandise or administrations, (3) likeness of the imprints, (4) proof of real perplexity, (5) the advertising channels utilized, (6) the sort of merchandise or benefits and the level of consideration liable to be practiced by the buyers of the respondent’s item, (7) litigant’s purpose in choosing the imprint, and (8) the probability of extension of the product offerings. AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (Ninth Cir. 1979). Be that as it may, the Sleekcraft components are non-comprehensive, and ought to be connected adaptably, especially with regards to Internet trade. System Automation v. Propelled Systems Concepts, No. 10-55840, 2011 WL 815806 (Ninth Cir. Blemish. 8, 2011).
Under 15 U.S.C. § 1117(a), when litigant demonstrations unshakably in its encroachment of another’s the trademark, the Court may grant up to treble harms to the offended party on the off chance that it finds that lost benefits are deficient. Taco Cabana Int’l Inc. v. Two Pesos, Inc., 932 F.2d 1113, 1127 (fifth Cir. 1991). At long last, the court may grant sensible lawyers’ expenses and expenses in the event that it confirms that the trademark encroachment case is “outstanding” under 15 U.S.C. § 1117(a).
Business Advertising or Promotion
The meaning of business publicizing or advancement under the Lanham Act is generally expansive and, notwithstanding clear ads, can incorporate web promoting, marks, and even a few deals introductions to gatherings of clients or potential clients. This component is normally a really explicit request.
prone to misdirect shoppers and impact their item or administration decisions. Unlawful promoting may incorporate, in addition to other things, false or misdirecting:
So as to win in a bogus promoting Lanham Act claim, an offended party must set up that:
• it endured business or aggressive damage
• the damage came about because of false or deceiving explanations of reality utilized by a rival in publicizing or limited time materials in interstate trade
• the false or misdirecting proclamations were probably going to substantially betray or befuddle shoppers
Notwithstanding when promoting articulations are actually valid, they can damage the Lanham Act whenever made in a deceptive or befuddling way.
Significant explanations may include:
• immediate and unequivocal false or deluding analysis of an offended party’s matter of fact
• near promoting that erroneously proposes or depicts a contender’s item or administration as equivalent to or superior to that of the offended party’s
Evident distortions (puffery or overstatement) that a sensible purchaser is probably not going to accept don’t comprise false or misdirecting promoting under the Act.
Deceives or is Likely to Deceive in a Material Way
A court will assume that a truly false notice beguiles in a material manner. Offended parties attesting a Lanham Act guarantee for deceiving however evident explanations face a higher weight: They should ordinarily indicate extraneous proof—like a review, for instance—that exhibits the deceptive impact of the notice. At long last, a few courts have held that an offended party need not indicate outward proof of materiality where respondent’s Lanham Act infringement is headstrong or in dishonesty.
Aggressive or Commercial Injury
To get injunctive alleviation, an offended party need just show undermined damage; real damage isn’t required. Be that as it may, to recuperate harms under the Lanham Act, an offended party must show genuine damage from the tested notice. The business about a contender’s matter of fact or item. A PC producer’s false proclamation that a contending PC creator delivered a sub-par item is a case of this sort of Lanham Act damage.
The U.S. Preeminent Court has likewise translated the Act to ensure organizations against contenders’ false/deceiving proclamations about business other than the offended party’s (i.e., a non-contender) that harm the offended party’s matter of fact. This may happen, for instance, if a PC maker (the respondent) issues a false and harming articulation about a segment provider (a non-contender) utilized by the producer’s rival (the offended party). In spite of the fact that the litigant did not legitimately condemn a contender or its item, the respondent’s rival (the offended party) may lose deals because of the harming explanation about its provider.
Harms for Trademark Infringement?
An offended party who demonstrates the majority of the components of trademark encroachment or “probability of perplexity” can recoup as harms any benefits gotten by the litigant because of their utilization of the imprint, any real harms endured by the offended party, and the expenses of the claim. 15 U.S.C. § 1117(a). A court may grant lawyer’s charges to offended parties in “remarkable cases.” Intentional utilization of a fake imprint in specific conditions can result in a harm grant equivalent to multiple times the respondent’s benefits. Courts may likewise arrange the pulverization of encroaching materials. 15 U.S.C. § 1118.
What Defenses are Available to a Trademark Infringement Claim?
A litigant blamed for encroaching an enlisted trademark can offer a few barriers under 15 U.S.C. § 1115(b), including:
•The trademark enlistment was false;
•The offended party relinquished the imprint;
•The offended party gave the Respondent authorization to utilize the imprint;
•The imprint is only spellbinding of the item or administration, and thusly not expose to Lanham Act assurance; or
•The respondent was utilizing the imprint, without information of the offended party’s utilization, before the date, the imprint was enlisted with the USPTO.
The majority of these safeguards additionally apply to supposed encroachment of an unregistered trademark.
Amazing as in it will manage the cost of you broad influence in seeking after and preventing a contender from encroaching on your trademarks. Likewise‚ on the off chance that you are a potential respondent and you are being blamed for encroaching on the characteristic of a competitor‚ you should continue with alert and work with your lawyers to completely comprehend your presentation and potential resistance.
Alleviation in False Advertising Lanham Act Lawsuits
Offended parties in false publicizing Lanham Act claims may get directives keeping litigants from:
• proceeding in-advance false promoting, and/or
• doing compromised false publicizing Courts may likewise arrange litigants to distribute revisions of false or misdirecting proclamations and to pay offended parties harms for misfortunes brought about by real business or aggressive wounds.
Lanham Act Violations Lawyer Free Consultation
When you need legal help with Lanham Act Violations, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C itemprop=”addressLocality”>West Jordan, Utah 84088 United States Telephone: (801) 676-5506
A patent is a right granted to an inventor by the federal government that permits the inventor to exclude others from making, selling or using the invention for a period of time. The patent system is designed to encourage inventions that are unique and useful to society. Congress was given the power to grant patents in the Constitution, and federal statutes and rules govern patents.
The U.S. Patent and Trademark Office (USPTO) grants patents for inventions that meet statutory criteria. The following provides a general overview of what a patent is.
Patent Categories
There are three different kinds of patents: utility patents, design patents and plant patents.
1. Utility Patents: The most common type of patent, these are granted to new machines, chemicals, and processes.
2. Design Patents: Granted to protect the unique appearance or design of manufactured objects, such as the surface ornamentation or overall design of the object.
3. Plant Patents: Granted for the invention and asexual reproduction of new and distinct plant varieties, including hybrids (asexual reproduction means the plant is reproduced by means other than from seeds, such as by grafting or rooting of cuttings).
For an invention to qualify for a patent, it must be both “novel” and “non-obvious.” An invention is novel if it is different from other similar inventions in one or more of its parts. It also must not have been publicly used, sold, or patented by another inventor within a year of the date the patent application was filed. This rule reflects the public policy favoring quick disclosure of technological progress. An invention is non-obvious if someone who is skilled in the field of the invention would consider the invention an unexpected or surprising development.
Naturally occurring substances and laws of nature, even if they are newly discovered, cannot be patented. Abstract principles, fundamental truths, calculation methods, and mathematical formulas also are not patentable. A process that uses such a formula or method can be patented, however. For example, a patent has been granted for an industrial process for molding rubber articles that depends upon a mathematical equation and involves the use of a computer program.
A patent cannot be obtained for a mere idea or suggestion. The inventor must have figured out the concrete means of implementing his or her ideas in order to get a patent. A patent also will not be granted for an invention with no legal purpose or for an unsafe drug.
Usefulness
An inventor applying for a utility patent must prove that the invention is useful. The invention must have some beneficial use and must be operable. A machine that will not operate to perform its intended purpose would not be called useful, and therefore would not be granted a patent. A useful invention may qualify for a utility patent only if it falls into one of five categories: a process, a machine, a manufacture, a composition of matter, or an improvement of one of these.
A process is a method of treating material to produce a specific physical change in the character or quality of the material, generally an industrial or technical process. A machine is a device that uses energy to get work done. The term manufacture refers to a process in which an article is made by the art or industry of people. A composition of matter may include a mixture of ingredients or a new chemical compound. An improvement is any addition to or alteration of a known process, machine, manufacture, or composition.
What is Patentable?
These categories include practically everything made by humans and the processes for making the products. Examples of things that are patentable include:
• Computer software and hardware;
• Chemical formulas and processes;
• Genetically engineered bacteria, plants, and animals;
• Drugs;
• Medical devices;
• Furniture design;
• Jewelry;
• Fabrics and fabric design; and
• Musical instruments.
Patent Protection
Unlike a copyright, a patent does not arise automatically; an inventor must apply for a patent. The inventor must apply within one year of publicly disclosing the invention, such as by publishing a description of the invention or offering it for sale. An inventor, or his or her attorney, generally makes a preliminary patent search before applying for a patent to determine if it is feasible to proceed with the application. The application and a fee are submitted to the U.S. Patent and Trademark Office, where it is reviewed by a patent examiner.
If a patent is granted, the inventor must pay another fee, and the government publishes a description of the invention and its use. Only a patent attorney or patent agent may prosecute patents before the PTO. Before a person may be licensed as a patent attorney or patent agent, she must have a degree in certain technical or scientific fields.
Utility and plant patents last for 20 years from the application date; design patents last for fourteen years. If the owner of a utility patent does not pay maintenance fees, the patent will expire earlier. After a patent expires, the invention becomes public property and can be used or sold by anyone. For example, after the patent on Tylenol expired, other pharmaceutical companies began producing a generic version of the drug.
Infringement
If an inventor thinks someone has used his or her patented invention without permission, he or she may bring a lawsuit against the infringer. If the court agrees, it may award the patent holder costs, attorney’s fees, damages in an amount equal to a reasonable royalty, and an injunction (an order prohibiting another person from infringing the patent). An action for infringement can be time-consuming and costly, so infringement cases often are settled.
A trademark, trade mark, or trade-mark is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks. The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity, trademarks are often displayed on company buildings. It is legally recognized as a type of intellectual property.
The first legislative act concerning trademarks was passed in 1266 under the reign of Henry III, requiring all bakers to use a distinctive mark for the bread they sold. The first modern trademark laws emerged in the late 19th century. In France the first comprehensive trademark system in the world was passed into law in 1857. The Trade Marks Act 1938 of the United Kingdom changed the system, permitting registration based on “intent-to-use”, creating an examination based process, and creating an application publication system. The 1938 Act, which served as a model for similar legislation elsewhere, contained other novel concepts such as “associated trademarks”, a consent to use system, a defensive mark system, and non-claiming right system.
Why Use a Trademark?
Individuals and companies have products or services trademarked to protect the product from being used without the permission of the source company. Most countries have patent laws that are designed to protect against copyright infringement. In the United States, the United States Patent and Trademark Office (USPTO) serves this function.
Although most countries have agencies through which businesses can have their products trademarked, international copyright regulation is more complicated than in the U.S., as there exists no universally recognized patent office, rules, or consistency.
Should I include trademark symbols in my logo?
Let’s clarify the symbols you may see hanging around a logo. They are the “Circled-R” (®), TM (™), and SM (℠). These are used to indicate how the mark is protected. The ® symbol means “registered” and therefore, can only be used once the mark has been officially registered with the United States Patent & Trademark Office (USPTO). By contrast, ™ and ℠ are usually used with unregistered marks simply to give notice of ownership of rights to that mark — meaning you don’t actually have to apply for federal registration to use them. “SM” means “service mark” and is technically used to distinguish services, whereas “TM” (trade mark) should be used to distinguish goods — though ™ is commonly applied to both.
Supposedly, failure to use the symbol may actually limit your ability to collect damages for trademark infringement. But, even this is somewhat subjective. Right now, if you visit the websites of some large brands, you’ll notice that Nike does not use any trademark symbols in their website’s logo. Neither does Microsoft (even though they used to in the not-so-distant past). Starbucks uses ™ (though I’m quite sure they’re federally registered). Staples has ®. Walmart has none. Burger King has ®. Bed Bath and beyond has®. GE has none. IBM has ®. Apple has none. Sony has none, but the PlayStation logos (which belong to Sony) all have ®.
So…what’s going on? As I said, inclusion of these symbols is optional. You’ll notice that large brands like these used the ® symbol in their earlier days. From that, I’d conclude that once you are a globally-recognized brand (with highly-paid legal departments), you may no longer feel it’s necessary to notify the public that your logo is protected… by that point, it’s understood. For young, small, or localized companies, this is not the case, so go ahead and show off that ® proudly. You’ve earned it.
You CAN include ™ … but should you?
This is a matter of opinion, but I prefer to leave it off. It offers no real legal protection, no more than you already have under common law. Common Law rights state that merely using your logo in the course of your business gives you the rights to it. (Of course, federal registration provides several advantages over common law, but that’s a different discussion. See “Is it necessary to trademark my logo?”.) I prefer to leave it off because it can often feel arbitrary, like an afterthought, and just adds clutter to a logo (which I am totally not a fan of). This is especially true when the logo is used at small sizes, and the TM or SM tends to look like a random pen smudge because it is so small, which can be distracting.
…But you still may decide you want to use it. Why?
The whole purpose of using ™ or ℠ is to bring attention to the fact that you are claiming rights to it. So to make this claim exceedingly and abundantly clear, you can include ™ or SM; but it does not technically give you any added protection. However, for companies that have legal departments or Intellectual Property lawyers at their disposal, they may often err on the side of caution and advise adding it. Also, consider the subtle psychological cues it communicates— will it make the brand appear more legitimate and serious to unknowing consumers? Possibly.
Where should it be placed?
If you’ve decided to include ™, ℠, or ®, where should it go? While there is no hard and fast rule, common practice puts it to the top right of the logo. Sometimes it works better at the bottom right instead. If the logo designer knows upfront that you want to include it, they may be able to find a way to work it a bit more seamlessly into the design, so that it helps to balance the logo, as opposed to looking like an afterthought or mistake.
What is Trademark vs. Registered?
The trademark symbol (TM) is a mark that companies often use on a logo, name, phrase, word, or design that represents the business. The registered symbol (R) represents a mark that is a registered trademark with the United States Patent and Trademark Office (USPTO).
Some people think you can use the two interchangeably, but this is not the case. The TM symbol actually has no legal meaning. You can use the symbol on any mark that your company uses without registering it.
The most common use of the TM symbol is on a new phrase, logo, word, or design that a company plans to register through the USPTO. The symbol can indicate your intent to move forward with obtaining a legal trademark. It also helps stake your claim in the design, alerting competitors that you plan to use it for your business.
But as mentioned, there is no legal protection when using TM. If you use a mark that infringes on someone else’s trademark, you still put yourself at risk for legal trouble. When a company or person holds a trademark on a specific design, the mark has restricted use. Only the owner can use, produce, copy, or profit from it. In the event that someone else tries to copy it, that owner can take legal action in a federal court.
So before you add TM to the end of your mark, do some research? You’ll need to make sure that no similar mark already exists in the Trademark Electronic Search System. If you find something similar, the next step is making changes to your mark so that it doesn’t infringe.
Once you’ve determined that your mark is truly unique, you can start using the TM symbol at the end. The three main placement techniques for notifying competitors of your intent to use the mark are:
• Placing a symbol (TM, ®, * [asterisk], or dagger/double dagger) at the first use of the trademark but not on subsequent uses, then adding a footnote that overviews the trademark
• Placing the TM or ® symbol next to the trademark every time you use it
• Using a different font or formatting, such as bold, italic, or uppercase, for the trademarked words to differentiate them from other text.
An example of a footnote for the techniques listed might be something like: “The Apple logo is a registered trademark of Apple, Inc.” You may also choose to include a reference to the legal trademark, such as “The Apple logo is a trademark registered in the U.S. Patent & Trademark Office.” It’s also acceptable to abbreviate the second portion as “Reg. U.S. Pat. & Tm. Off.”
It’s widely accepted to place it at the top left corner of the mark in superscript text. If it doesn’t look good there, you can drop it to the bottom right corner in subscript text. But putting it elsewhere is rare.
When you add TM to the mark, it makes sense to move forward with the trademark application. Make sure you include all required documentation.
If you’re submitting a mark that only contains words, your trademark application must include a mockup of the word or words as you plan to use it/them. When you’re trademarking a logo or symbol, include an image of the mark exactly how it will look when you use it on your product, collateral, or other materials.
It’s also important to note that you’ll only receive trademark protection on the exact design. So you may want to file several applications for a logo or symbol. If you plan to use it in more than one color, submit an application for each version, including one in black and white. This protects your mark in all forms.
Once you receive approval on your trademark application, you can legally start using the registered symbol. Using the symbol shows all competitors, customers, and others in the industry that you legally own the rights to this mark.
When using either mark in print, the general rule is to use it in the first instance of the mark. After that, you can stop using it without losing the legal protection.
When does a logo become a trademark?
Your logo becomes a trademark when it appears on labels, packaging or the product itself and the public recognizes the company behind that particular combination of colors and shapes. Imagine you see a sign with golden arches; you probably are picturing a Happy Meal (also trademarked) or similar fast food item at a McDonald’s restaurant.
Why wouldn’t you register your logo as a trademark?
There are many reasons why you might choose not to pursue trademark registration, depending on your current and anticipated circumstances:
• Your logo might change in a couple of years. Only the exact version that is registered is legally protected, and you could actually weaken the registered trademark’s rights by using variations. Also registered logo trademarks must continue to be used in order to retain their rights. If you don’t plan to continue using your logo then there might not be a reason to register.
• Your logo can’t be registered because it is similar to another already in existence somewhere else in the country. As long as you stick to your geographic area, then state registration or common law probably provides enough protection.
Your business name is one of your company’s most important assets. It’s a symbol for your reputation, and it’s how you’re known to the outside world. If a competitor starts using your name, you’re not likely to be happy about it.
But what if you trademark your business name? Will that prevent other businesses from using it?
The answer is that a registered trademark gives you the exclusive right to use your business name nationwide in connection with the goods and services you’ve identified in your registration, and allows you to enforce your trademark by filing a lawsuit in federal court. Those are strong protections, but it will be up to you to monitor unauthorized uses of your name and take steps to stop them.
Whether you should register a trademark for your business name depends on the geographic scope of your business, the type of name you have and whether you have the time and money to file a trademark application.
Are you running a new business, and looking to protect the equity in your name and your logo? Filing for federal or state trademark protection may be the right move for you. However, we are often asked whether it makes sense to trademark the name or slogan of a business, the logo for the business, or both. This article describes the differences between these various types of trademarks and the considerations for entrepreneurs interested in trademark protection. To better illustrate these terms, we’ve come up with the hypothetical company YanKenPo, Inc., whose officers are considering trademarking YanKenPo’s name and logo. The logo for the company contains the word “YanKenPo” in a stylized font along with other unique design elements.
Advantages of Trademarking a Business Name
If you use your trademark but don’t register it with the USPTO, you have common law trademark protection. You may be able to stop other people from using your mark, but only in your immediate geographic area. That may be good enough for a small local business, but may not be much help if you have an Internet-based business with Nationwide trademark protection
Your trademark ownership becomes part of the USPTO’s database, creating a public record of your ownership and the date you began using the trademark
People who conduct a trademark search will see your trademark and may be less likely to use it
Registration creates a legal presumption that you own the trademark and can use it for the goods and services listed in your trademark application. This is helpful if you ever need to sue someone to enforce your trademark
U.S. registration may allow you to register your trademark in other countries
Registration gives you the right to use the registered trademark symbol, ®
The numerous advantages of trademark registration have led to millions of trademarks being registered with the USPTO.
However, not all business names are eligible for trademark registration.
What Kinds of Names Can Be Trademarked?
The USPTO will only register business name trademarks if they are distinctive and not likely to be confused with an existing trademark.
The more distinctive the name is, the easier it is to trademark.
“Coined” or made-up names like “Xerox” are the easiest to trademark and receive the strongest protection. Names that use existing words in unique ways—such as “Apple” computers—also make strong trademarks.
Names that suggest a product without describing it can also be trademarked. Examples are ‘Greyhound” bus and “Goo Gone.”
Descriptive business names are the hardest to trademark. These include personal names, such as Ben & Jerry’s ice cream; location names, such as “Chicago Pizza;” and names that describe a product or service, such as “Best Carpet Cleaning.” The USPTO won’t register a trademark for a descriptive name unless you can also show that the name has been used so much that people automatically associate it with your product or service.
The USPTO may also deny your registration if your business name is confusingly similar to an existing trademark. A confusingly similar name sounds like the name of another business that offers similar products or services, so that people might think they are related. For example, Omega Hair Salon and O-Maya Beauty Shop might be confusingly similar because the names sound alike and both businesses offer beauty services. But Omega Car Wash would probably not cause a likelihood of confusion because no one expects the same company to offer both hair care and car washes.
How to Trademark a Business Name
Before attempting to register a trademark with the USPTO, you should conduct a trademark search using a trademark search service or the USPTO’s Trademark Electronic Search System to determine whether anyone else has registered a similar trademark for a similar type of goods or services.
If you conclude that your name is eligible for trademark registration, you can apply to register your trademark online. If you register your name as a standard character mark, your trademark business name will cover your name displayed in any font, color or design you choose. You can also register your name as a special character mark that depicts your name in a particular color, font or design—but your trademark will extend only to the exact design you submit.
Keeping your logo and business name separate allows you to use either property on its own. Trademark protection only extends to the trademark registration as it’s submitted to the United States Patent and Trademark Office. Federal trademark registration for your business name and logo together requires you to use them together at all times to have legal protection under federal law. Many circumstances, such as advertising or marketing strategies, necessitate the use of one element or the other. Keep them separate to simplify your business operations.
Only in rare instances would you want to change your company name. But you may decide to rebrand your logo to associate your name with new products. Registering your name and logo together would require a new registration for your business name if you overhauled your logo. The duplicate registration could cause problems during the trademark registration and delay your rebranding campaign.
The only true benefit you receive when registering your name and logo together is lowered cost. Each trademark registration costs approximately $300. By separately registering both elements, you are up to $600. You save money in the short term registering the items together. In the long term, you pay more when you rebrand your products or change your business name. Spend more now so you don’t end up regretting it later.
What’s The Difference between Trademarking a Name versus a Logo?
You can register your business name or slogan as a “standard character mark”, which is any combination of letters and numbers with no reference to style, design, font or color. According to the U.S. Patent and Trademark Office, the rights in a standard character mark “reside in the wording,” allowing you to “use and protect the mark in any font size, style or color.” Standard character marks offer the broadest possible rights of any single form of trademark protection, but do not protect special designs and coloration.
A “Standard Character Mark” will provide protection for the name of the business or the slogan for the business, and provides the exclusive right to use the name/slogan in any form in combination with the categories of goods and services that we identify in the application.
You can also register a stylized design known as a “special form mark,” or “design mark.” Special form marks protect a specific combination of stylized lettering, a design element such as a logo, or both. This type of protection is ideal for companies looking to protect a distinctive visual aesthetic or signal, but it is fairly limited. Special form rights protect only the particular style registered. If you want to make a design change, you’ll have to file again.
It depends. Higher value tends to lie in name recognition rather than familiarity of a logo. Since logos change more often than names, it usually makes more sense to register a standard character mark to protect the business moniker itself. With their generous set of rights, standard character marks allow you to preserve near-complete control over your business name. Because standard character marks protect the mark in any font size, style, or color, if your logo contains the name of your business, then nobody who offers the same goods or services would be able to copy your logo even if you only registered your standard character mark. However, if your logo commands attention and a good deal of customer recognition, or if you are concerned about competitors using a similar logo, you may want to consider trademarking it.
Now, let’s go back to our hypothetical company, YanKenPo. If YanKenPo registered as a standard character mark, then YanKenPo’s competitors would be prohibited from using the name “YanKenPo” (or any confusingly similar name) within the same categories of goods and services offered by YanKenPo. This protection would even extend to the company’s logo because the logo contains the word “YanKenPo.” However, if YanKenPo did not obtain protection under a design mark application as well, another company may be able to do a similar logo but with a different word without infringing on YanKenPo’s registered trademark.
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The attorney’s fees is different that the costs of filing. The cost to trademark a logo with the U.S. Patent and Trademark Office (USPTO) is $225–$600 as of January 2017, plus legal fees. You can register a trademark with your state for -0, but federal registration offers a great deal more legal protection. Call Ascent Law for your Free Consultation and we can guide you on the right path for you.
The USPTO offers four different forms, each with different pricing. If you file online using the Trademark Electronic Application System (TEAS), you can choose from three options. File a regular TEAS for $400 or a TEAS RF for $275. You can file a TEAS Plus for $225 if you meet certain terms, such as fitting neatly into one of the standard business groups. Which form you can use will depend on your business and your logo? You can also opt to file a paper form for a flat rate of $600. These fees are valid as of January 2017, according to the USPTO website.
A logo is a design that your company uses on its products, signs, or ads to identify yourself. A logo is often a visual image of your company name, like the logos for Coca-Cola or McDonald’s. Other logos are designs that represent a company without using words, like the Apple logo or the Nike swoosh.
Register your trademark at the federal level by filing an application with the USPTO. Paper applications are accepted, but electronic applications through the Trademark Electronic Application System (TEAS) or via an online service are preferred. Using TEAS will save you money; the fees for e-applications are $225–$400, while a paper application will cost you $600. If you use your logo for multiple classes — like if you run a diner and also sell t-shirts — you’ll need to apply once for each class. Filing fees are not refunded if you are not approved.
Global Business Trademarks
Foreign-owned businesses who want to trademark their logos in the United States have three options: A foreign application, a foreign registration, or a Madrid Protocol application.
Trademarking a name by applying for a trademark registration with the USPTO involves filing an application that identifies the trademark and the class of goods or services that you’re using it for.
You can submit a trademark registration application online, using the Trademark Electronic Application System (TEAS) or through an online service. The USPTO also accepts paper applications but strongly prefers electronic applications. Trademark fees for electronic applications are currently $225–$400 per class of goods or services, depending on the type of application you file. The trademark cost for registering with a paper application is currently $600 per class of goods or services.
If you use your mark in connection with more than one class of goods and services—such as both t-shirts and software—you must pay the filing fee for each class of goods and services. The fee is not returned to you if your trademark registration application is ultimately denied.
What Is the Cost of Trademark If You Want to Trademark a Slogan?
A slogan is a word or phrase typically associated with a business, product, or service and the fee for trademarking your slogan is $325-$375 depending on how you file.
Considering a slogan is technically intellectual property and part of branding, it is not uncommon for a slogan to be trademarked. Therefore, you should know the trademark cost even if you aim to trademark a slogan.
How Do You Trademark a Slogan?
In order to trademark your slogan, it must be connected to your brand. If your brand and slogan are not connected in some way, you cannot trademark it.
If you aren’t sure whether or not your slogan can be trademarked, an intellectual property lawyer – such as myself – could lend you some assistance. I will also help you determine its trademark cost. Technically, there are just a few steps to getting your slogan trademarked.
Step One: Make sure the slogan is available. You can only trademark a slogan if it hasn’t been trademarked by someone else. This just involves checking the online database that belongs to the United States Patent and Trademark Office. Besides informing you about the trademark cost, fortunately, this is also something a lawyer could help you with.
If the slogan you are using is utilized with more than one type of product or service, you will have to pay extra filing fees. Naturally, it is also important to keep in mind that filing fees are nonrefundable.
Finally, you just have to wait for your trademark application to be processed. As long as you have paid the trademark cost and filled out the paperwork properly, your slogan trademark should be registered with the online database once the paperwork is processed.
To know more about your trademark cost and begin the process of trademarking your slogan, start by calling us.
What Is the Trademark Cost If You Want to Trademark a Product?
To trademark a product, you will pay $325-$375 as the cost of trademark for the filling fees and additional attorney fees as applicable.
Trademarking a product is considered branding that product. For example, Nike’s swish check mark is how they trademark their products.
An attorney can do a search to determine if you can trademark your invention or mark and then file the right applications to make sure your trademark has the best chance of approval. The attorney will also tell you about the trademark cost involved.
Other Fees
If you choose to hire a lawyer to conduct a trademark search or help you with the trademark registration process, you will also incur legal fees. Many lawyers charge by the hour, with rates typically ranging from about $125 to a few hundred dollars. Some lawyers will handle trademark registrations for a flat fee.
Every 10 years, you must file an application to renew your trademark registration. The USPTO’s fees for trademark registration renewals are approximately $300 for an electronic application and about $400 for a paper application.
Trademarking a business name can offer valuable protection. You may be able to obtain state trademark registration for $100–$200. Federal trademark registration extends your protection nationwide and offers other important advantages, but it typically costs more: $275–$375 for each class of goods and services that you want to protect.
Costs Before You Apply for a Trademark
Your first cost for a trademark application is for doing a thorough search of other trademarks that have been applied for and registered. You can do the search at no cost by using the USPTO’s Trademark Electronic Search System (TESS).
You might also want to hire an attorney to do the search for you, to make sure you aren’t missing a mark that might be too close to yours. This cost varies on whether you want to search internationally or locally, and it can be up to several thousand dollars.
Trademark Applications – Classes of Goods and Services
The first variable in trademark costs is the number of objects or types of services you want to trademark. You must file a separate trademark application for every class. A class is a type of product or service where your trademark appears. For example, if you have your trademark on t-shirts, mugs, and pens, you must file three trademark applications.
The regular TEAS application is the “basic” application. The cost of an initial application is $400. You only need to submit minimum information, and submitting a complete application will speed up processing time.
TEAS Reduced Fee (RF) is a moderate option. You don’t have to file a complete initial application, and you must agree to communicate electronically. The cost of an initial application is $275.
TEAS Plus is the least expensive and streamlined application. You must file a complete application, pay all filing fees at the time of filing, agree to file certain documents electronically, and receive all communications via email. Another benefit to the TEAS Plus application is faster service. The cost of an initial application is $225.
This article from the USPTO explains the details of the requirements for the three types of applications.
Drawing Costs. You must submit a “clear drawing” of the mark (the logo or name/logo combination) that meets specific requirements. A trademark design might cost anywhere from $500 to several thousand dollars.
International Trademark Registration. Since many trademarks are on the internet, it’s difficult to just register in the U.S. You can register your trademark internationally through a separate application to the World Intellectual Property Organization (WIPO), through the U.S. trademark office. The cost for an initial Madrid Protocol application, per class, is $100 if filed electronically and $200 if paper-filed.
Statement of Use Fee. If you file your trademark application before using it, you need to file a declaration later when you begin using it. The cost of filing this declaration is $100 electronically or $200 by paper.
If you use a trademark or service mark before it’s registered, you’ll need to use the ™ or ℠ designations. When your registration has been approved, you can use the ® designation.
Trademarks can’t just be “set it and forget it.” To continue your trademark protection, you must maintain it and report your maintenance activities. The USPTO calls this process “keeping your trademark alive.” There is a cost to these reports, and a separate filing must be made for every class of goods or services in the registration.
The trademark process can be tricky, and a trademark can be rejected for a variety of reasons. If you are really serious about getting your logo or business name trademarked, you should consider paying for an attorney to work through the process. According to Up Counsel, a flat fee for a trademark attorney might range from $300 to $1000 per application.
These are just the basic costs for trademark applications. There are other costs for expedited service, renewal, late fees, and others.
Logos serve to represent a given
organization or company through a visual image that can be easily understood
and recognized. A logo generally involves symbols, stylized text or both. Logos
are often created by a graphic artist in consultation with a company and
marketing experts.
Three categories of logos exist and are often used in
combination. These three categories are:
Ideographs
– freeform images that can be entirely abstract.
Pictographs
– symbolic, representational images.
Logotypes
– simple, textual representations, like a company’s initials.
As a key part of an organization’s identity, a logo must try to communicate the brand essence of a company or what the organization represents. This makes designing logos a critical job for a graphic designer and is often a creative process that is heavy in research and consultation. For international organizations, cultural differences in symbolism or the associations of colors must be considered.
A logo isn’t intended to explain or directly sell a company.
Instead, its sole purpose is to identify the company in a way that is memorable
and familiar. For example, Apple uses a bitten apple as its logo. The bitten
apple does not explain what the company does or sells in any way, but it
is distinctive and recognizable.
A logo is meant to be long-term as it is intended to become
familiar to customers and promote brand loyalty. As a result, logos are
generally not redesigned very often.
1.
Simple
Simple logos are the ones people can
recognize as soon as they see them. The simplest logos are the ones people
remember the most.
2.
Scalable
A great logo should be simple enough
to be able to be scaled down or up and still look good.
3.
Memorable / Impactful
A great logo should be impactful.
You want to capture your viewer’s attentions and leave an impression (a
positive impression, hopefully).
4.
Versatile
A great logo should look equally
good on any web device and on any kind of print material.
5.
Relevant
A great logo should be relevant to
your practice. It has to have meaning that relates to the work you are doing.
A
logo makes you stand out from the competition
Perhaps
the most fundamental function of a logo is giving your business a unique mark
that differentiates you from other businesses. This is especially
important if your business has competition (which 99.9% of them do). Before you
get a logo for your business you’ll want to research what your competitors’
look like so you can position yourself. Check out how the Cactus Dental logo
separates themselves from the sea of cliché tooth industry by
taking a feature unique to their geography and turning it into a
toothbrush.
A
logo identifies key information about your business
Along
with demarcating your business, a good logo also provides your customer
with some crucial information about your company: it can communicate the
industry you exist in, the service you provide, your target demographic and
your brand values.
For
example, a company might use circuit imagery into their logo to show that
they operate in the software industry. Or they might use a specific color to
communicate they are committed to being green/environmental. Or they might use
a stylish font to highlight that they are luxurious. Check out how Wild
Hearts uses an image of a book with a heart in it to show that their business
specializes in romance novels
When Do You Need Permission to Use a Logo?
A logo or trademark is any photograph, word, or symbol used to identify a brand, service, or product. You need permission to use a logo unless it is for editorial or information purposes, such as when a logo is used in a written article or being used as part of a comparative product statement.
Other than these two instances, you should
never assume you can use a trademarked logo. A person or company should
never use a trademark or logo without written permission from its owner. To get
permission, write a letter to the trademark owner. Include a description of why
you are asking and how the logo will be used. Third parties should never use
someone else’s logo without a licensed agreement, including program and
corporate logos.
In certain cases, a person or
company involved in logo programs give third parties standing permission
to use their trademarks. Depending on the company, the logo program may state
any specific requirements and technological compatibility, company
relationships, and program membership information. However, even then, third
parties cannot use logos without a specific agreement.
More than that, trademarked companies
often have resale policies for their products. A policy may indicate that
the retailer or reseller can never change the trademark or corporate logo
appearing on company products. Trying to replace a company’s logo with your own
goes against the company’s written policy and is never allowed without a
written agreement.
Why Is Getting Permission to Use a Logo
Important?
The United States trademark law as stated in the Lanham Act allows a non-owner of a registered trademark to make “fair use” of it without permission. Fair use includes using a logo in editorial content, among other situations.
You also don’t need to ask formal
permission from a corporation to use its logo if the usage doesn’t create any
impressions that the logo endorses or associates with another company. This
scenario could result in a company complaint.
Unfortunately, there is no hard and fast rule determining what “fair use” actually means. The United States Patent and Trademark Office (USPTO) cannot decide if a certain use falls under the “fair” category or even advise on any trademark violations. When in doubt, it’s best to consult an experienced attorney to learn whether you should use a trademark or logo.
However, the Publishing Law Center states that, unlike a copyright, a trademarked logo’s ownership can last forever. Logos don’t even need to be registered as trademarks to be protected under current law. This means that using someone else’s logo without permission, even if it’s unregistered, is against the law.
When you decide that you need to use a
trademark or logo, here are the steps you should follow:
Determine if gaining permission is necessary
Identify the logo’s owner
Identify which rights you need to request
Contact the owner with a description of your intended use and negotiate the required payment, if any
Receive your trademark permission in writing
Reasons to Consider Getting Permission to
Use a Logo
Since it’s difficult to know what falls
under “fair use,” here are some straightforward reasons why you would
want to request permission to use a trademark or logo:
You want to use a third party’s logo or trademark
to make and sell crafts. This will require a trademark license.
The logo’s size, usage, or placement implies that
you are affiliated with the trademark owner, or that you’re being endorsed
by the company. This is a direct violation of the owner’s trademark
rights.
Commercial uses such as promotion, advertising,
and marketing require written permission except in the cases of editorial
or comparative advertising use. This can even include business-sponsored
activities such as public presentations.
Even though using the logo as part of
a comparative statement in an advertisement, such as comparing one
fast food restaurant’s hamburger to another, falls under “fair
use,” comparative statements tend to provoke companies into legal
action. You may want to have a lawyer review the advertisement before
publishing it and make any necessary changes to avoid a worst-case
scenario.
When Is Permission Not Required?
Other than using a trademark or logo for
editorial purposes or as part of comparative product statements, you don’t
need to ask permission if the logo’s use will educate, inform, or express
opinion protected under the Constitution’s First Amendment. This includes
displaying a logo in a work of fiction, whether it’s a graphic novel or film.
As long as the fictional work doesn’t
confuse the viewer as to who owns the trademark, using logos in fiction falls
under fair use because it adds to a story’s realism. However, Hollywood has
flipped this rule around by selling product placements to trademark owners as a
means of advertisement, which has been a lucrative move.
Another gray area in trademark law is
what’s known as trademark parodies.
Generally speaking, you don’t need to request permission to imitate a trademark
if you’re poking fun at it. One example is the parody newspaper The San
Francisco Chomical, which parodies The San Francisco Chronicle. Offensive
parodies can trigger lawsuits from the trademark or logo owner, so it’s
important to weigh the consequences before going ahead with your trademark
parody.
There are also circumstances where you can
use media logos on your website without violating trademark rights and opening
yourself up to infringement claims. Just remember that you cannot confuse
customers into thinking you own the logo, so it’s best to display such
trademarks with “as seen in” phrases.
In general, you won’t run into trademark
parody problems if the parody:
Doesn’t confuse consumers; they get the joke and
know that it doesn’t come from the original trademark owner
Doesn’t compete directly with the trademarked
product
Does parody the trademark or logo, which means it
pokes fun specifically at the trademark
Examples of Ways Someone Can Use a Trademark
without Permission
Competitors and individuals don’t need
written permission to use a logo if the use falls under the following reasons:
Descriptive
use. Adjectives can be trademarked,
but you might have a hard time complaining about competitive use. For
example, if you trademark the name SPEEDY for your oil change services,
but a competing business uses the phrase “speedy service,”
that’s not considered a violation. A trademark does not give you monopoly
rights over words.
Comparative
use. One of the most high-profile
comparative uses was when the Pepsi Challenge pit Pepsi against its
competitor Coca-Cola. As long as the trademark display is correct, any competitor
can use your trademarked logo to compare benefits or effectiveness.
Collateral
use. If you own a lawn mower repair shop,
you can legally advertise the fact you repair Brand X lawn mowers, even
though you don’t make those lawn mowers or own the company’s logo. You
just can’t suggest that you have a relationship with the company or that
the company has approved of you.
Nominative
use. A person can use someone else’s
trademark as a reference without infringing. For example, if you need to
use the band name the Rolling Stones in a profit-making venture, you’re
allowed to do so. That’s because there are only so many ways you can
describe the legendary band. However, there are limitations. You can’t
overuse the trademark or logo. So, if you tried to sell Rolling Stones
t-shirts, you’re infringing, but you can organize an unauthorized fan club
and sell memberships.
Copyright and Logos
In order for a work to have copyright
protection, it must reach a requisite level of creativity. Many logos, however,
do not. Since copyright can’t protect a name, colors or the design of the logo,
most simple logos simply do not have the required level of creativity to be
considered copyrightable. However, many ornate or artistic ones do.
And here lies the confusion with logos. Many of them actually qualify for both trademark and copyright protection. In fact, the entire Omega case hinges in part upon a logo stamped onto a watch being copyright protected (thus making the import of the watch a violation of the copyright).
In short though, if a logo would
qualify for copyright protection as a piece of artwork separate from its use as
a corporate identifier, it is copyright protected. Nothing in the law makes the
two rights mutually exclusive so many logos can and are enforced using both
trademark and copyright.
