Trademarks can be thought of as identifiers. Trademarks may be words, names, symbols, devices, colors (think Tiffany Blue, a registered trademark), or almost any other designation (such as the Burberry Check Pattern) that distinguishes your goods or services from someone else’s.
Trademarks help you ensure that the goods or services associated with that mark are up to your standards. They foster confidence in your clients that the goods or services associated with your mark come from a single source.
To qualify as a trademark, the mark must: (1) be unique or used uniquely such that it clearly identifies a good or service, or their source; (2) only function as an identifier; (3) be actually used in business. Once these requirements are met, the mark’s user is awarded limited rights and protection from others using the same or confusingly similar marks. While you do not legally have to register a trademark with the U.S. Patent & Trademark Office, failing to do so significantly limits your rights. If you don’t register your trademark, you can only enforce it in your immediate geographic area.
By registering your trademark, you can expand your geographic area and gain additional benefits, such as an assumption of trademark validity and ownership as well as the ability to sue in federal court and seek greater damages. Once used, the trademark is valid so long as it is used. This means, theoretically, your trademark can exist forever. However, rights can be still lost through non-use or the mark becoming too “generic.” A trademark becomes generic when the word or phrase is used by the public when referring to the general product. Some examples of trademarks that have become too generic include Q-Tip, Band-Aid, and Velcro.
Trademark rights attach only to the actual use of the mark in association with the particular good or service. This is why there are identical yet valid trademarks in different industries. For example, Domino for sugar and pizza, and Delta for faucets and the airline. Trademark infringement issues can arise when the two uses of the same mark create consumer confusion.
Copyright is one’s property rights in something they created. To get these rights, the creator must create original work in some tangible form. A tangible form is thought to be artistic creations (such as books, music, movies, etc.). However, newer technology, such as software code, also qualify as tangible forms.
Copyright provides creators with two basic rights regarding their work: (1) the right to use, produce, and distribute their work; and (2) the right to prepare derivative works. While registering a copyright is not required, we recommend doing so as it will provide additional safeguards. Copyrights have a limited lifespan. Generally, the life span is the life of the author, plus an additional 70 years. Once the copyright has expired, the work falls into the public domain.
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Registration is critical to protect your intellectual property. Whether you want to create a trademark or copyright or if you believe there is infringement, take immediate action to protect your business and your work. Our experienced trademark and copyright attorneys are available to help.