Not all government-issued intellectual property protections are created equal. Some expire long before others do. Specific safeguards protect creative works of art and authorship, while others protect reproducible inventions. Because there are so many fundamental differences between the primary kinds of government-issued intellectual property protections, it is important to speak with an experienced intellectual property attorney before applying for any of these safeguards. Each application/registration process is uniquely complex and time consuming in its own way.
Trademarks safeguard words, phrases, graphics, symbols and other advertising devices designed to brand a company, its products and/or its services in ways that distinguish that brand from competitors. The trademark symbol (TM) is used to signal that a word, graphic, etc. is being claimed by a specific company as trademarked. However, it is important to understand that without a formally approved trademark registration, this claim remains largely unenforceable.
The TM symbol is used to signify common-law rights in a trademark pursuant to the Lanham Act. Thus, those who have not yet registered their brand name with the United States Patent and Trademark Office (USPTO) should brand their work with a TM symbol instead of an R symbol. The same goes for any work that has been submitted for trademark registration via an application to the USPTO that has not yet been approved. The TM symbol is typically, though not always, used to protect an unregistered mark by alerting potential infringers that a term, slogan, logo or other indicator is being actively claimed as a trademark. However, when trademark registration has not yet successfully been obtained, the use of TM does not guarantee the owner’s mark will be protected against infringers under current intellectual property law. To succeed in a common-law infringement action under the Lanham Act, the trademark owner must generally prove: 1) s/he was the first to use the trademark and 2) the infringing party’s use of the trademark confuses the public from distinguishing the goods’ source.
Only after a trademark has been successfully registered with the USPTO may a company brand its advertising logos and catchphrases, its products and its services using an R symbol instead of a TM symbol. It is important to work with an attorney when pursuing a successful trademark registration as missteps in the process can leave companies vulnerable to infringement and to lawsuits claiming that they are infringing upon the rights of competitors. This legal vulnerability can cost companies a great deal of time, effort, money and other resources, so it is generally a good idea to work with an attorney in order to secure a successful trademark registration for new eligible branding devices without delay.
Once a trademark registration attempt is successful, no other company will be able to legally safeguard work that is too similar for as long as the trademark remains active. In general, if a competing company markets itself or its wares using a word, phrase, symbol, etc. that fails to properly distinguish the competitor’s work from a trademarked work, the competitor may be held accountable for infringing upon protected intellectual property. For example, if a competing electronics manufacturer used a graphic of a plump orange with a detached stem and a small bite out of one side to brand its work, it would likely be held accountable for infringing upon the Apple Corporation’s registered (and immediately recognizable/distinguishable) logo.
Registering a trademark gives companies superior rights over others in the U.S. to broadly utilize trademarked work within a given industry, to distinguish themselves from competitors and to appeal to the broader public. Properly registered trademarks also provide companies with the ability to obtain treble damages against infringers. Not only can a registered trademark deter imitators, it also provides companies with a heavy presumption of ownership in the courts. It is partially for these reasons that a registered trademark is much more preferable than an unregistered trademark. If you would like to conduct additional preliminary research on this topic before meeting with an experienced intellectual property attorney, consider learning more on how to register a trademark. In general, the registration process requires an attorney to conduct a search of existing trademarked work in order to ensure that the trademark under review is unique. If it is indeed unique, the attorney then features a representation of the mark in the USPTO’s corresponding registration application. If successful, trademark registration generally lasts 10 years. Continued use of the mark must usually be verified roughly five to six years after its initial registration is confirmed.
Unlike trademarks and patents, which must be formally applied for through the USPTO, copyrights are granted as soon as a qualifying work of creative art or authorship “is created and fixed in a tangible form that is perceptible either directly or with the aid of a machine or device.” This automatic legal recognition of ownership is extended to original works of music, literature, drama, visual art, architecture and some other forms of creative expression. As a copyright holder, an individual artist or business is generally granted the exclusive right to perform, display or distribute the work, reproduce it and profit from it. However, until a copyright is formally registered with the U.S. Copyright Office, the holder of the copyright will generally not be able to enforce their intellectual property rights in court. It is for this reason that it is so important to work with an attorney to secure a successful registration as soon as your creative work becomes eligible for enforceable copyright protections.
Once a copyrighted work is successfully registered, the creator’s exclusive rights (as outlined above) generally remain active for 70 years beyond the life of that creator. However, some exceptions to this rule may apply. It is worth noting that the copyright symbol, a letter “C” with a circle around that letter, and the use of the word “copyright” may be used before and after formal registration of a copyrighted work with the USCO. This symbol gives notice to the public that the work is copyrighted and that you own the work.
Intellectual Property Assistance Is Available
Now that you have completed some basic research on the safeguards and terminology relevant to your work, it is time to connect with an attorney in order to identify your next steps. If you are ready to begin securing formal intellectual property protections for your creative works of art/authorship or branding tools, please consider contacting LawTrades today in order to schedule a consultation with an intellectual property attorney.