There is so much to think about when you finally take the leap to start your business: building your website, figuring out payments, and how do you even pay taxes?! But one crucial step that you may have decided can wait until later—when the dust settles—is dealing with trademark and copyright.
Spoiler: waiting could be a dangerous choice.
It’s an overwhelming thought for most, and something that immediately brings to mind paperwork and confusing legal jargon. I get it. But protecting your business is important, especially for small businesses, and it’s easier than you think. Read below to find out why this should be one of your top priorities and how to get it out of the way so you can focus on building your brand.
Trademark vs. Copyright: What’s the Difference?
A trademark is something that identifies and distinguishes your brand from someone else’s, like a symbol, design, word, or phrase (for example, a logo).
Copyright is a form of protection that “protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture”.
In other words, a trademark protects your brand, and copyright protects your work.
For example, if your company name is XYZ COMPANY, that is a trademark, but if you have an ebook or videos that you sell under XYZ COMPANY, those would be protected by copyright law. Similarly, a course name (for example, “ABC Course”) could be registered as a trademark, although the course materials (i.e., worksheets, PDFs, instructional videos) would be protected by copyright.
Do I Need to Register My Trademark or Copyright?
It is not legally necessary to register a trademark or copyright. Trademarks and Copyright that are not federally registered are governed “at common law”. Even though you aren’t required to register your trademark or copyright with the US Trademark and Patents Office (USPTO) or the Copyright Office, it’s a smart move.
With registered trademarks, the authority of your mark is presumed. With unregistered trademarks, you must prove the mark is ultimately yours.
Trademark registration will protect you in the event someone else wants to use your business name, design, or logo—and let’s face it—in today’s world, there are a lot of copycats out there.
If you want more protection on your work (your graphic design, novel, or any other work), copyright registration would offer such protection by having your copyright on public record, along with a certificate of registration, should legal proceedings ever be brought against you, or should you need to litigate against someone else that might be infringing on your work. For more information about copyright and copyright registration, see the U.S. Copyright Office website at https://www.copyright.gov/help/faq/index.html.
Trademark and copyright registration are both important, but trademark registration is especially important for small businesses, since they typically have fewer resources in the event an action is taken against them.
What do the ®, TM, and SM Symbols Stand For? Do I Need to Use Them?
The ®, TM, and SM symbols (sometimes colloquially called the TM logo or trademark logo) are called designations, and it’s a good idea to use them every time you use your mark (logo/design). If you’ve registered your trademark, be sure to use ®. If you haven’t registered your trademark yet, use TM (trademark, for goods) and SM (service mark, for services) to indicate that you’ve adopted that mark.
These should also be used on your website to protect your intellectual property. For more info on how to protect your website, check out our post: 9 Steps You Need to Take to Legally Protect Your Website.
Why Should I Register My Trademark?
A lot of new business owners feel that registering a trademark is something that can wait until they’re more of an established brand. Even if you are just a fledgling business, registering your trademark should be top of mind and one of your highest priorities, since it could save you a lot of trouble down the road.
When you register your trademark (your logo, slogan, name), you’ll automatically get these benefits:
- protection if another business tries to use your chosen marks;
- it signals to your customers that your business and brand can be trusted; and
- it establishes your authority and shows that you’re an expert!
The cost of registering your chosen mark is pocket change compared to what you might have to pay if legal action is brought against you. The investment, as early as possible in your business journey, is well worth it.
Are My Domain and Business Name Registrations Trademarks?
Domain names are not registered trademarks. Trademarks legally identify services or goods as being from a particular business or entity, while a domain name as part of a web address is registered with a domain host and does not provide you any rights under trademark law. As the USPTO states,
“Even if you register a certain domain name with a domain name registrar, you could later be required to surrender it if it infringes with someone else’s trademark rights”.
If you register your business name with the appropriate state authority, your name is not trademarked. It is simply registered for doing business, and other entities could later try to stop you from using your business name if they believe your name infringes on their trademark.
What’s the Worst That Can Happen If I Don’t Register My Trademark?
You’ve put a world of effort into building your brand: finding your voice, designing your logo, and putting in the work to make sure your customers know your business is one they can trust.
One day, you’re working away, and you decide to check the mail. You put down your coffee, walk down to the mailbox, and pull out a crisp white envelope.
You sit back down in front of your computer, take a sip of that delicious espresso, and open the letter you’ve received: it’s a cease and desist letter! You practically choke on your coffee. You didn’t bother registering your trademark, so you never did a trademark search, and had no idea that your business name and logo looks very similar to another business’s.
Now, all of a sudden, you’re forced to completely rebrand. All of the work you’ve put in for months, or even years, is a waste! Or, at worst, you’re forced by the court to pay thousands (or millions!) in damages. This all could have been avoided if you’d done your due diligence and registered your trademark.
Registering your chosen mark protects you in another way, too. If you register your trademark, you can protect your business from someone else copying and using your marks.
That’s just what Variety Stores did when a little store by the name of Walmart decided to start using Variety’s trademarks, “Backyard”, “The Backyard”, and “Backyard BBQ” in regards to their garden products. In March 2019, a judge of the federal court ordered that Walmart pay $95.5 million in damages due to trademark infringement. This just goes to show the protection that is offered to you once you register your trademark, even against the “big guys”.
Do I Need a Lawyer?
When you start the trademark application process, you’re engaging in a legal proceeding. That means you have to comply with U.S laws. A lawyer licensed to practice in the U.S. who specializes in trademark law can help you deal with many important issues throughout the trademark application process. But hiring a lawyer is expensive and often intimidating, right?
If you want the peace of mind of hiring a lawyer without the hassle of working with an out-of-touch attorney who doesn’t understand your business and the worry of billable hours stacking up, our Brand Protection Package is the perfect solution.
When you choose to register your trademark using the Brand Protection Package, I’ll do the heavy lifting. You’ll get a lawyer (me!) who performs a comprehensive search of the USPTO database. These kinds of searches are important because other businesses may have protected legal rights in trademarks that are similar to your chosen mark, even though they’re not registered with the USPTO. These unregistered trademarks won’t appear in the USPTO database, but could still prevent you from using your chosen mark even if the USPTO registers your mark.
You’ll also get all of the following:
- a FREE consultation;
- preparation and filing of one trademark application with the USPTO;
- trademark application monitoring and updates;
- responses to every Office Action from the USPTO;
- unlimited email support during the application process;
- preparation and filing of a statement of use and extension requests if required;
- a trademark registration certificate; and
- guidance on how to maintain and protect your trademark!