Do You Copyright or Trademark a Name? Everything You Need To Know

12 minutes

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Picture of Andrew Rapacke
Andrew Rapacke is a registered patent attorney and serves as Managing Partner at The Rapacke Law Group, a full service intellectual property law firm.
Do You Copyright or Trademark A Name

Confused about whether to copyright or trademark a name? You’re not alone. Our guide will clarify which type of intellectual property protection to use, provide a step-by-step approach to protecting your name, and outline how to maintain those intellectual property protections for your business. Do you copyright or trademark a name? Let’s dive into the specifics.

Understanding the nuances between whether you copyright or trademark a name can be quite challenging, especially for new business owners or creators in the market. While copyrights and trademarks both fall under the umbrella of intellectual property rights, they serve different purposes and provide distinctly different protections.

Copyrights are designed to protect original works of authorship, such as books, music, and artwork, ensuring that the creators can control how their work is used and distributed. In more legalese terms, copyrights protect literary, musical, dramatic, choreographic, pictural, sculptural architectural works, motion pictures, and sound recordings from the unauthorized performance, reproduction, display or licensing of their work for the life of the author plus 70 years. 

On the other hand, trademarks are all about protecting brand identity and reputation, consumer protection and quality assurances for names, logos, and slogans and other identifiers that distinguish your goods and services. This includes not just business names, but also logos, slogans, and other symbols that distinguish your products or services and may last indefinitely if properly maintained.

The process of securing a trademark involves several critical steps, starting with a thorough search to ensure that your desired name or logo isn’t already in use. This is followed by the application process, which includes submitting detailed information about your business and the mark you wish to register. Once your application is submitted, it will be reviewed by the United States Patent and Trademark Office (USPTO), and you may need to respond to any objections or requests for additional information. Maintaining your trademark protection is an ongoing effort, requiring periodic renewals and vigilance against potential infringements.

By understanding the scope of these protections and properly utilizing both copyrights and trademarks in your business, you can build a robust strategy that protects your creative and commercial interests with multiple layers of intellectual property protection, allowing your business to thrive and grow without the constant threat of imitation or infringement.

Understanding the Nuances: Do You Copyright or Trademark a Name?

Trademarks serve as a shield for your brand’s identity, safeguarding the unique aspects such as your business name, logos, and/or slogans that consumers associate with your goods and service. These marks are not just simple emblems but are tools that differentiate your products and quality of service from competitors. They encapsulate the essence of your brand’s promise and commitment to consumers—signaling a standard of excellence and reliability in a crowded and competitive marketspace. 

Trademark protection forms the foundation for your brand’s success in the commercial arena by safeguarding its distinctiveness against intellectual property theft.

The Essence of Trademarks

A trademark serves as the unique identifier for your business and a message that tells consumers unmistakably, “these goods or services belong to our brand exclusively!” This trademark could be a single word such as Google®, a slogan like Nike’s Just Do It, or an emblematic logo akin to the famed bitten apple of Apple Inc. Additionally, personal names, social media or influencers name or handle can also be protected with a trademark if they are used in commerce and have acquired distinctiveness. For example, Tommy Hilfiger®, Ralph Lauren®, and Kylie® are names that have been successfully trademarked with the United States Patent and Trademark Office.,

Trademarks may also encompass distinctive colors, sounds, and smells that are immediately associated with your company. They provide legal protection which ensures that only you can capitalize on the distinctiveness and reputation of your name, logo, or catchphrase. It prevents others from reaping benefits from what you have innovatively built and established in terms of market identity. Did you know that in 2018 Hasbro trademarked the distinct smell of its Play-Doh products? They sure did! The Play-Doh aroma is described as a combination of sweet, slightly musky, vanilla-like fragrance, with slight overtones of cherry, and the natural smell of a salted, wheat-based dough.

Trademark Registration Essentials

The process for securing a federal trademark registration may seem both costly and challenging, but the protection it affords to your brand’s identity is unparalleled. When you secure a federal trademark with the USPTO, you’re creating a legal barrier around what identifies your business, providing your business with exclusive rights to use that mark with the associated goods or services your business provides.

What does this really provide you ask?  It provides your business the exclusive right to use your mark in all 50 states and U.S. territories within your class of goods or services.  While it does not mean you have protection in all classes for all goods and services, it does mean you are the exclusive owner of that mark in your class of goods/services and should someone want to use that mark, or a confusingly similar mark, for related goods and services, then they need your authorization through a license agreement or they will need to purchase your mark.

Trademark Symbols and Their Significance

Just like most of us, you’re probably wondering what all these symbols like TM, SM, and ® really mean and when your business should begin using them.  The answer is simple:  most businesses need trademark protection for their goods or services whether it’s a standard character mark such as a business name, logo, or slogan.  

The ‘TM’ symbol is used to indicate an unregistered trademark related to goods and can mean the business may have a trademark application filed with the USPTO, at the state level, or simply claiming some common law rights.  Similarly, the ‘SM’ symbol carries the same legal protections but designates a service mark for services.  The coveted symbol that indicates a federally registered mark is the ‘®’ symbol, which indicates that your mark has been federally registered with the USPTO and enforceable throughout all 50 states. 

Clarifying Copyrights: Protecting Original Works

Copyrights safeguard the expression of ideas and serve to protect the rights of creators over their original works.  Primarily, the works include literary, musical, and artistic and grant the creator(s) exclusive rights to their original work and allow them to control the use, distribution, and reproduction of their work.   

Monetizing a copyright involves leveraging the exclusive rights you have over the creative work to generate income.  Here are a few examples of how creators can monetize their work:

  1. Authors:  This involves publishing and selling physical copies of their books, using a publishing company to distribute your work, or E-Books and Digital Content that are offered by subscription services like Kindle Unlimited or Scribd.
  2. Musicians: This involves selling CD’s, vinyl records, or digital downloads that are distributed through platforms such as Spotify, Apple Music, Netflix, or Amazon Prime and receive royalties based on viewership or streams.
  3. Artistes: this involves selling prints, or original artwork, or licensing your work to a third party to use on their advertisements, services, textbooks or publications for a fee.
  4. Filmmakers, Social Media Influencers and Content Creators:  involves monetizing your content through ad revenue, sponsored content, and brand partnerships.

Copyright Registration Process

Starting the process of copyright registration enhances your claim over your work, makes a public record of your rights, and equips you with an effective legal instrument should you need to defend those rights. Registration isn’t required for copyright protection. However, it bolsters your position in law, enabling you to pursue statutory damages and perhaps recoup lawyer costs during instances of infringement.

This act not only proclaims your exclusive authority but also acts as a deterrent against possible illicit use of your artistic creations.

Copyright Duration and Renewal

Copyrights offer enduring protection that lasts throughout the author’s lifetime and extends for seventy years posthumously, safeguarding an author’s work for posterity. In cases involving works made for hire or those cloaked in anonymity or pseudonymity, the statute stipulates a duration of protection lasting 95 years from the date of publication or 120 years from creation—whichever period is shorter.

This sustained safeguarding guarantees that creative outputs are not hastily stripped away from their protective canopy too soon.

Deciphering Intellectual Property Rights for Names

Trademarks stand as the vigilant protectors of your company’s unique identifier in an arena where business names and emblems are pivotal for recognition. Unlike copyright, which recedes into the background, it is trademark law that robustly differentiates your products or services from those offered by rivals sharing a similar name.

It is of paramount importance to have legal ownership over both the trade name you offer goods and/or services under and the logo symbolizing your brand, thereby confirming these identifiers as exclusively yours.

Trademarking Business Names and Logos

Registering a trademark for your business name or logo is akin to marking the summit of your enterprise with a distinct symbol, affirmatively claiming it as yours under legal protection. This process provides defense against any unsanctioned use of your mark while ensuring that it’s recognized as distinctive in its commercial environment. Yet traversing the route to successful registration can present challenges. The necessary actions include:

  1. Undertaking an extensive search to ensure there are no pre-existing trademarks which could result in an infringement on another individual’s rights.
  2. Completing and submitting a trademark application through the correct governmental body.
  3. Addressing all office actions or refusals issued by the examining officer from the USPTO.
  4. Achieving approval and upholding your registered trademark demands filing documents periodically for maintenance purposes and vigilant monitoring against possible infringements

Adherence to these prescribed stages will facilitate not only achieving a registered mark for either your business name or logo, but also delivering robust safeguarding over time for your brand’s identity and reputation within its market space.

When Copyright Does Not Apply to Names

Trademark law, rather than copyright, offers the necessary legal mechanisms to shield business names. Copyrights are designed to protect original artistic and literary creations. They do not cover commercial identifiers such as business names. Trademark law ensures that these names can signify the source of goods and services without risk of being improperly used by others.

Avoiding Common Misconceptions About Trademarks and Copyrights

In the complex world of intellectual property, trademarks and copyrights are frequently misunderstood due to confusions about their distinct differences, including how they protect and the rights they grant to owners. It is crucial for creators and businesses to debunk these myths in order to make full use of the legal protections available.

Trademark Myths Debunked

In trademark law, understanding the scope of federal and common law trademark law is not always clear. Many believe that rights can only be secured through official registration or confuse possessing a domain name with owning a trademark. In reality, the uniqueness and commercial use of a mark play pivotal roles in securing rights and protecting against unlawful use.

It is imperative for companies to dispel such misconceptions to fully grasp their entitlements, as well as duties within the ever-evolving realm of trademark law.

Copyright Confusions Clarified

There are widespread misconceptions about copyrights. It’s a common misunderstanding that all original creations receive automatic protection, or that unique logos fall under copyright law. The truth is, for a work to qualify for copyright it needs to be expressed in a physical form, and logos often need trademark protection as they serve as identifiers of brands. Grasping these subtleties is essential for those who want to safeguard their creative works adequately.

The Intersection of Trademark Classes and Business Entities

Similar to the manner in which an orderly library sorts books for straightforward retrieval, the classification scheme of the USPTO assists companies in traversing the vast expanse of trademarks. The system includes 45 unique classes that facilitate accurate sorting of goods and services, guaranteeing that trademarks correspond appropriately with a company’s products or services. This step is vital within the trademark procedure because it determines protection boundaries and deters possible legal complications with other entities operating under identical categories. Hiring an intellectual property lawyer can help ensure that the trademark being sought has not been registered by another business entity.

Decoding the Nice Agreement

The Nice Agreement serves as a vital guide in the realm of trademarks, offering an internationally recognized classification system that organizes goods and services into 45 distinct classes. This framework streamlines the process of registering trademarks across various countries, enabling enterprises to effectively stake their claim within the international market landscape.

By embracing this standardized system, companies are empowered to traverse with assurance through the complex global expanse of trademark protection.

Matching Trademark Classes to Your Business

Choosing the right trademark classes for your brand is as tactical as playing a game of chess, where each decision plays a crucial role in establishing the protection of your business’s identity. Incorrect choices may create weaknesses that competitors could exploit within their specific goods or services class.

Consequently, grasping which trademark classes align with your enterprise is vital. It can be what separates a well-protected brand from one that is susceptible to risks.

Seeking Legal Assistance: The Role of Trademark Attorneys

Guided by a trademark attorney, you can navigate trademark law effectively. Legal experts help during registration, provide strategic advice, and protect your rights. The USPTO recommends using a trademark and patent attorney for filing. Their expertise shields you from obstacles and helps to strengthen your brand through enforceable trademarks.

Why Engage a Trademark Lawyer?

A trademark attorney lays the groundwork for your brand’s legal defenses, creating a design that will hold up in the competitive marketplace. They offer expert guidance on pinpointing and classifying products and services as well as crafting an all-encompassing strategy to protect your rights. Consulting with them is not just following procedure—it is an essential asset contributing to the enduring prosperity of your brand.

Employing the expertise of a trademark lawyer goes beyond completing bureaucratic requirements. It’s about strengthening your brand’s distinctiveness and cultivating confidence among consumers.

From Filing to Federal Court: A Trademark Attorney’s Scope

A trademark attorney is responsible for several critical functions, such as:

  • Submitting applications for trademarks
  • Executing searches related to trademarks
  • Providing counsel on the selection of trademarks and methods for their safeguarding
  • Addressing official correspondences from the USPTO
  • Acting on behalf of clients during opposition proceedings
  • Facilitating negotiation processes for settlements and licensing contracts
  • Upholding trademark rights within the realm of federal court

When it comes to championing your brand’s protection, a trademark attorney stands as your steadfast ally.

Such attorneys are adept not merely in application processes, but also excel at preserving your brand’s worth throughout its entire existence.

International Trademark Protection Strategies

In the landscape of a globalized economy, it is critically important for businesses expanding beyond their home territories to employ a robust strategy for international trademark protection. This ensures that the integrity of your brand’s identity is preserved across different countries.

To achieve comprehensive safeguarding of your trademark on an international scale, leveraging mechanisms such as the Madrid Protocol and pursuing direct registration in foreign nations are vital components. These steps enable brands to maintain uniformity and prevent dilution in markets around the world.

Utilizing the Madrid Protocol for Global Coverage

The Madrid Protocol provides an efficient and economical pathway for obtaining trademark protection internationally, allowing brand safeguarding in more than 120 countries through a single application. This system facilitates the pursuit of simultaneous trademark protection across various jurisdictions, providing your brand with equal recognition and security overseas as it receives domestically. It serves as an influential instrument for worldwide brand growth by easing the intricacies associated with multiple international registrations.

The Role of UDRP in Domain Name Disputes

In the era of technology, domain names in many cases hold equal importance to a brand’s identity as your federally registered trademark. The Uniform Domain-Name Dispute-Resolution Policy (UDRP) delivers an efficient and focused system for settling disputes over domain names, providing trademark owners with a defense against cybersquatting activities. This policy is an essential element of any thorough trademark strategy, safeguarding your brand’s digital footprint.

Navigating the Trademark Application Process

The process of applying for a trademark application requires detailed preparation. By submitting an intent-to-use application, you can establish your place in line before your mark is actually used in commerce, thus safeguarding your rights as you gear up for introduction to the market.

Initiating the trademark application sets off a thorough review by the USPTO that verifies whether your mark qualifies for registration, positioning it to represent the excellence and uniqueness of your brand. This exacting procedure culminates with the formal recognition of your trademark’s role in the business world.

Conducting a Comprehensive Trademark Search

Starting the trademark registration process without first conducting a comprehensive search is not recommended. By utilizing the Trademark Electronic Search System (TESS), you can uncover any similar or conflicting marks that could be a barrier to registering your trademark, or worse, a potential trademark infringement dispute.

Although it is possible for pro se applicants to conduct an initial trademark conflict search, employing a trademark attorney brings specialized skills capable of detecting legal issues that your application may encounter during examination to prevent costly office action rejections or appeals.

Completing and Submitting Your Trademark Application

The final stretch of the trademark application process is the completion and submission of your application, a step that solidifies your claim to the mark. Each application must be accompanied by a detailed description of the goods and services the mark will represent, ensuring clarity and precision in its scope.

The filing fee, a modest toll for the bridge to trademark protection, marks the transition from applicant to trademark owner. It’s a process of anticipation and exactitude, culminating in a legal declaration of your brand’s identity. This process involves trademark registration fees, ensuring a smooth journey towards securing your brand.

Get Your Trademark, Guaranteed

The RLG Guarantee is truly one-of-a-kind. It promises that you will receive top-notch service and results. If your trademark application is not approved, you get a full refund of the legal fees. Yes, you read that right—a full refund! Additionally, take advantage of a free trademark strategy call to discuss your specific needs and get personalized advice from experts. This free consultation can provide you with invaluable insights and a clear roadmap for your trademark journey.

Let this guide be your beacon, illuminating the path to safeguarding the essence of your brand and the originality of your creations for generations to come.

Frequently Asked Questions

How can the trademark registration process be accelerated?

To expedite the process of trademark registration effectively, it is advisable to engage a trademark attorney to ensure you comply with the eligibility requirements. It’s important to understand that not all marks will be eligible for expedited processing.  Typically, an applicant must demonstrate a valid reason for expedited processing such as imminent litigation or infringement, or the need to secure a trademark for product launches or business expansion.  

You will need to provide a detailed explanation to the USPTO as to why you need expedited processing and pay the expedited application fee in addition to the standard filing fees.  If your expedited processing petition is granted, the pendency time of your application can be reduced from 9-12 months to just a few months.

What are the steps involved in the registration process of a service mark?

When seeking to register a service mark, it’s necessary to perform a search for potential conflicts, proceed through the steps of the application process, and tackle any concerns raised by the USPTO, including responding to Office Actions.

How can I search for potential conflicting trademarks?

The Trademark Electronic Search System (TESS) offered by the USPTO is an invaluable free search engine that enables you to easily search pending and registered trademarks. 

This tool is essential for conducting due diligence to ensure your trademark application is registrable and does not infringe on a third-parties.  The database allows you to search for trademark in either basic or expert search modes.

How can I determine the right trademark class for my business?

It is advisable to seek guidance from a seasoned trademark attorney who can assist in identifying the appropriate classes for your trademark that align with your business needs as they are both familiar with the Nice Classification System and the USPTO’s Manual of Acceptable Identification of Goods and Services.

Can domain names be copyrighted?

Domain names do not qualify for copyright protection since they are not recognized as original works of authorship. Domain names can be protected with a trademark if they are used as a source identifier of your goods or services.

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