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Copyright, Trademark and Your Protections

A key component of any business plan should include copyright and trademark protections where appropriate. It is essential that once you have formed your company and have found some success in your brand, you start to consider trademark and copyright protections. The intricacies of these two areas of the law are often long, drawn out and boring to non-lawyer types so I won't get into to it too much here. Nevertheless, it is key to business growth and continued development and important to not overlook.

A good trademark and copyright lawyer should allow you to get the protection you need and to never have to think about it again. That means that they are doing all the heavy lifting. They are filing the applications, monitoring deadlines, and handling enforcement. Seems easy enough, right? But this is one area where it is important to stay on top of things and be aggressive in monitoring and defending your marks. You also want to make sure that the attorney is doing everything timely, so that your mark does not fall into public domain for lack of appropriate filings.

Copyright protection has fewer complications for getting the mark, but is more difficult to defend as the mark continues. A written, pictorial or graphic work is provided copyright protection almost at the time of creation. It is created in the original author and thanks to the Mouse will likely outlive the original holder. The real problem with copyright is how it is used and how it is manipulated for other uses in the future. That is where protection becomes more difficult. It is also costly at times to protect the work. So why would anyone take the time to engage in such protection? Well if you write the next great American novel or discover the next great plan for making wine or growing grapes, don't you want to protect that work and effort you've been putting in to the creation. A good copyright attorney can discuss with you the merits of a copyright claim, including whether a copyright is created, the cost of defending it and the merits of the case.

Trademark protection is something that is much more visual and likely easier to understand. You have a logo, a business design, aesthetic, or image that needs to be protected. If it falls into one of several categories and has not been used before, it can be trademarked. We can run through a few examples.... what do you think of when I say search engine, online shopping, brown truck? Most likely you thought Google, Amazon and UPS. Their marks have become synonymous with their brands and invoke reactions in people that connects them to the service they provide. This is what a trademark is supposed to do. After a review of your potential marks and the likelihood of them being accepted for protection by the USPTO, you will register the mark and begin to grow the association between your symbol and your brand.

The real fun begins in the defense of the mark, or maybe that is just the law nerd in me. Regardless, you want to make sure that you do everything necessary to protect your mark and ensure no one else steals it but also that it does not fall into general use for a specific product..... Kleenex and Q-Tip are the most recognized victims of this phenomenon.

What do I mean general use? Well if your mark is associated with the product it describes, people may begin to refer to that product by your mark, making it very difficult for you to continue to protect the mark and your asset of brand recognition. For example, most people ask for a Kleenex when needing to blow their nose and not a facial tissue or buy a Q-Tip not a cotton swab regardless of the name brand for either product. This is the fine line of trademark law. You want the world to associate your product to your name, like Google is to search engine, but you don't want it to be so common that it falls into everyday use for all products in the category. That's where a good attorney comes in to lay the foundation to prevent that from happening, right from the start when the mark is being selected.

The other concern of trademark defense is to make sure that no one else is using your name or anything close to it so they do not trade on the good will associated with your brand. For example, Target is unlikely to allow someone to open a competing retail chain using the color red and calling itself Bullseye. While the name is not the same, it clearly is a derivative and meant to attract the goodwill associated with Target to this new brand Bullseye. Additionally, you would want to make sure if a color is associated with your brand, that it is not being used for other associated brands....looking at you Tiffany Blue. Defense and cease and desist is the best way to make sure you are showing your competitors, the world and most importantly the USPTO that you're serious about your mark and mean business.

If you need assistance with trademark or any other intellectual property matter, feel free to schedule a consultation. The above is a very simplified description of a very intricate area of law. It will be helpful to discuss the issues your company faces and the best way to move forward and protect your assets.

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