223 - Copyrights and Trademarks
On today’s episode of the podcast I chat with Joey Vitale, trademark lawyer and owner of Indie Law.
Copyrights vs trademarks
Copyrights protect your content, trademarks protect your brand. For example, when you walk down the cereal aisle of your business, the trademarks are the packaging (things like business name, logo, slogan, title of your podcast, etc.) and the stuff inside the cereal box (the content you’re taking, the posts on your website, etc.) and that’s where the copyrights come in.
Trademarks are not to protect you, they’re to protect consumers. For example, imagine there was no rule and any tech company could call themselves Apple, consumers wouldn’t know who they could trust.
The sign of a trademark, lawyers refer to it as source identification, when a name or phrase is mentioned and people can automatically identify the source behind that. For example, Disney having the trademark behind Hakuna Matata.
Why do I need a trademark, especially if I’m not having any problems of my brand/product being copied?
Even having an LLC or domain name does not give you trademark naming rights. It’s important to not only protect ourselves, but make sure that what we’re doing is not already stepping on the toes of other copyrights without us realizing it.
At what point do you initiate the trademark process?
It depends on what you envision for the future of your company. In the beginning of your company, if you receive a cease and desist letter, it is easier for you to change your name and brand than it would be if you were far into the growth of your company and had already created a well-known brand name. How quickly can you pivot?
Trademark registration is different than getting an LLC or domain. It’s an audition, not a file and it’s yours. If you do get a trademark, in addition to a piece of paper, here’s what it can give you:
To boil it down, there are a few different layers, and the first is Common Law Trademark Rights - Just by being in business you get these automatically you own those trademark rights by being first. These are geographic-based, bigger than a city, much smaller than a state. For example, pre-Internet this was enough for a corner bakery who didn’t sell online.
Right now, over half a million applications are being filed a year so the timeline is 12-24 months to get an answer.
A trademark can also implement attorney fees, meaning if someone is using your trademark and you need to get an attorney, that person may also be responsible for the fees. It also can allow you to file to companies like Instagram if someone is using your trademark as their account name.
Over half of trademark applications that get filed get rejected and the main reason is a likelihood of confusion issue. You have to look at not just the trademark but also the description of the services being provided. If the names are similar but they are offering completely different things, that can be okay.
The more generic your business name is for example “Brilliant Photos” versus “Kodak” the more you will have less to stand on and if you do get a trademark, the more of an uphill battle you will be fighting against people who don’t realize they’re using it.
If someone is doing their own trademark research, the searches you run have an immediate expiration date because people file all the time. There is a secret weapon and it’s an Intent to Use Trademark application. There are two ways of applying.
1A - That’s where you’re using that trademark in commerce currently
1B - This is an Intent to Use application before you commit to business and launch publicly
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