As an inventor and patent holder, some of my strongest intellectual property has been my trademarks and copyrights. According to the US Patent and Trademark Office:
A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Some examples include: brand names, slogans, and logos. The term “trademark” is often used in a general sense to refer to both trademarks and service marks.
Unlike patents and copyrights, trademarks do not expire after a set term of years. Trademark rights come from actual “use”. Therefore, a trademark can last forever – as long as you continue to use the mark in commerce to indicate the source of goods and services.
Must all trademarks be registered? No, registration is not mandatory. You can establish “common law” rights in a mark based solely on use of the mark in commerce, without a registration. However, federal registration of a trademark with the USPTO has several advantages, including a notice to the public of the registrant’s claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration.
Melissa Dagodag of the Law Offices of Melissa K. Dagodag specializes in trademark and copyright law. Melissa answers some of our questions about both:
What is the most important thing business owners need to now about copyrights and trademarks?
You want to make sure you’re not stepping on someone else’s toes by using a substantially similar (in the case of a copyright) image, literary work, photographic work, etc., or by using a confusingly similar (in the case of trademarks) brand name or logo. So, you should hire an attorney to search existing copyrights and trademarks before you actually start using them.
What is the difference between a copyright and a trademark? Do you need both?
These are frequently confused, and in fact are very different. A copyright gives the owner the right to control how a creative work is used and is made up of a number of exclusive rights, including the right to make copies, authorize others to make copies, make derivative works, and sell and market the work, and perform the work. In contrast, a trademark gives the owner the right to exclude others from using a confusingly similar trademark or brand name or logo (a distinctive sign or indicator used by an individual, business, or other entity to identify that the products or services with which the trademark appears originate from a unique source and distinguish its products or services from those of other entities).
Do you need to protect everything with a copyright or trademark?
It’s not a question of necessity. If you want to minimize your chances of being sued for trademark or copyright infringement, then it’s a good idea to have an attorney run a trademark or copyright search before you begin using a trademark, or publishing an image, design, or photograph, etc. that may be copyrighted. Federal registration of both copyrights and trademarks may also give the owner certain rights to statutory damages in the event of an infringement of the owner’s copyright or trademark that the owner will lose if the owner does not have a federal registration.
How long is your work covered by a copyright or trademark?
The term or duration of a copyright in the U.S. is generally the life of the author plus seventy five years if the work is created today. If it was created in the past, the rules are more complicated. You can go to www.uspto.gov to learn more. As far as trademarks are concerned, the way one gains and keeps ownership of a trademark is through actual use of the mark on goods or in connection with services. Therefore, as long as one continues to use the mark in commerce, one keeps the trademark alive. The duration of a trademark is therefore potentially unlimited.