Lynchburg Business

Does Your Business Need a Trademark or Copyright?

Issue: June 2010 by Lynchburg Business in Legal

What is your most valuable business asset? Many business owners would argue that it is their good name or brand. It is the essence of how they operate, how they care for their clients or customers and how they build future business opportunities. It is what sets them apart from the competition and allows someone to choose them first. It is the sum of their business, and is often expressed with a word, phrase or symbol.

I often have clients ask me about protecting their business image with a registered trademark or copyright. Generally, in order to register either, an application must be filed with the U.S. Patent and Trademark Office or U.S. Copyright Office, respectively. If you choose to register your trademark or copyright, then I strongly recommend hiring professional help. It will cost approximately $1,000 to have an attorney search and file your application for you, and the cost is well worth avoiding the hassle of attempting to register on your own.

The real question is not how to register, but whether registration is necessary. Before I answer that question, allow me to define some terms. A trademark is a word, phrase or logo that identifies a specific product or distinguishes a source of goods. A copyright is recognition of an author’s ownership of certain types of work such as art, music, literature or drama. Clearly, a trademark differs from a copyright; however, the question about whether you should register either is not so different.

First and foremost, one must understand that the original creator always has fundamental rights to his or her work once the work is produced. Registration is not required to affect those rights. For art, music, literature and drama, the creator’s rights arise when the work is recorded on some type of tangible medium such as paper, film, digital media, CD or tape. Business brands and names are a little trickier; just because you use the brand or name in your business does not mean you have any right to use it exclusively. Your fundamental rights only arise when the brand or name identifies a specific product or service produced by that business.

For instance, I do not have rights in the term, “You’re Fired!” just because I have fired someone in the course of doing business, even if I wrote it down. However, JMBP, Inc., the production company for the popular television show “The Apprentice,” has a trademark on that phrase. They registered the trademark because Donald Trump uses the phrase during the show, and the phrase is now closely related to the show and products offered for sale that promote it.

If “You’re Fired!” is used in the show, and identifies a specific product or service produced by JMBP, Inc., then why would they bother to register the phrase? Simply put, what does registration of a trademark or copyright do if it doesn’t grant rights in a brand or work of art? Registration does three things: 1) It confirms that your brand or art is not being claimed by someone else, which could subject you to an infringement claim, 2) It serves as notice to others that you are claiming that brand or art as your own, and 3) It provides evidence of ownership that allows you legal rights you would not otherwise have.

The short answer is that you do not need to register your trademark, but it is the best way to protect your business image. The cost involved is nominal compared to litigating against someone who uses your brand or art. You still may end up in court, but your case will be much better. Attorneys spend less time on strong cases, which results in fewer client expenditures.

Look at it this way: You have made a great effort to take care of customers or clients, and to promote your business image. It would be disastrous if potential customers or clients confused you with a similarly named business that is known for providing terrible service or products. If that happens and you need to put a stop to it, then a registered trademark or copyright will give you a leg to stand on when you go to battle to protect your brand. It will always produce better results than your naked word that you are the original creator of your brand or art. So perhaps the question you should be asking is, “What is my reputation worth?”

The preceding is for informational purposes only and not intended to constitute specific legal advice or form an attorney/client relationship. Please seek the services of a licensed attorney for specific legal advice.