TRADEMARKS, COPYRIGHTS AND PATENTS
Our clients often ask about trademarks, copyrights and sometimes, patents. Unfortunately, too many people look into this after naming their company and commissioning their logo, so we’re on a mission to educate small business owners everywhere about these important ways to protect your business AND your brand!
This information has been taken from “Make It Your Business: Trademarks, Copyright and Patents” by Vince DiCecco, published on 2/1/12 at www.sdgmag.com (Sign & Digital Graphics magazine).
Let’s begin with how customers best identify products and businesses: their names and logos. Trademark law provides protection of the names of things. Originally, a “trade mark” was a craftsman’s signature engraved on his work. The concept has since expanded to not only cover the names but their images. Today, the words “Coca-Cola,” written in white script against a red background, is the world’s most recognized logo. For its part, Coke has spent millions defending this trademark. They must do so, or they’ll lose the right to retain it.
Sound confusing? Trademark law is probably the messiest aspect of intellectual property because the only test to determine the strength of a trademark is to successfully defend it in court during an infringement lawsuit.
First, a name must be sufficiently unique to qualify as a trademark. That does not give a company ownership of the words, just their usage as a name for something specific. For example, an ink manufacturer can trademark the product name “White Tiger,” even though there are other products with the exact same name—a vodka, outdoor folding chairs and accessories for 4×4 Land Rovers, to mention a few. And the circus animal in a Las Vegas show has no grounds to growl about any of them.
If you want to do a preliminary search of the availability of a name for a new product or business,www.trademarkia.com offers a free Internet search service. Keep in mind, though, it will be only be a search of trademark names that have been registered with the Patent and Trademark Office (PTO) in Washington, D.C. Registration of your company name and logo is a great idea—and the cost is affordable—especially if you think you may have to defend it in court. But it is not legally required, so there are many companies out there whose trademarks are not registered. They simply have to prove they began using the mark first, before someone else decided to use it.
Registered trademarks are so designated by the familiar circled “R”—®—following them, whereas a simple superscripted “TM” following the name is a warning to others that your company is willing to sue to protect it if necessary. When registering a trademark, be sure to include a generic description of the product after its name. Why? Coca-Cola neglected to add the word “beverage” when it applied for registration, and lost the second half of its name to the public domain. A judge ruled that “cola” had become a generic term referring to soft drinks—hence the product names Pepsi-Cola, RC Cola and so on.
That, incidentally, is why Kraft Foods, the makers of “Jell-O® brand gelatin,” added the “brand gelatin” part to its registration. Even though people commonly refer to similar desserts as “jello,” and not gelatin, Kraft could press the issue and correct all of us on the proper usage! Naturally they don’t, but they do reserve the right to defend the “Jell-O” trademark against any upstart competitor that might try and trick consumers into thinking they are buying the original.
The term “copyright” comes from “copy right”—the right to make copies of any original, creative work. For graphic designers, the issue usually involves pictures, graphics and artwork. Even though a piece of art may exist in the form of a .GIF or .JPEG file on the Internet, someone owns the copyright to that artwork—whether or not the person or enterprise is easily identifiable—which means, literally, that they alone have the right to copy it.
If you create something, you are the only one who has the right to make copies, unless you grant permission or sell that right to someone else. If someone makes a copy without permission—and benefits financially from the copy—then you, the copyright owner, can sue the “thief” for monetary damages and to have any unauthorized copies destroyed. I can tell you the American court system takes copyright infringement seriously—such as in the music sharing lawsuits in the early 2000s that put Napster out of business, for example.
Is it wrong? Well, if it’s for personal use, and not for commercial reproduction and sale, then it’s not much different than the court-upheld “fair-use” ruling that allows you to record a television show for viewing at a later, more convenient time.
And what does all this have to do with our industry? Consider how artwork used to create signage and other graphics is created with the assistance of computers. If, today, the current technological norm says it’s permissible to program a TiVo®-like digital video recorder, why couldn’t a person pirate images from the Internet, “massage” them perhaps, then pass them off as their own, and use them for personal gain?
A-ha! The answer lies in the word “massage.” How different is their artwork from the original? That is exactly how a judge would look at and rule on it, with the general idea that, if an effort has been made to confuse the market into thinking it is getting the original rather than an imitation, infringement has occurred.
There are no easy answers when it comes to interpreting copyright law. But the concept of copyright itself doesn’t need to be hard to understand. Simply put, the creator of a work of art owns it as a piece of intellectual property—until and unless he sells it or otherwise grants permission (through licensing) for someone else to use it. No, he does not have to apply for a copyright. He doesn’t even have to mark the piece with the familiar circle around the letter C—©—followed by the year it was created and the owner’s name, for it to be considered copyrighted (although that wouldn’t hurt). Thus, while you may not know how to enforce the rights your copyright legally reserves to you, you still own the right to copy.
Permission to make a copy of a copyrighted work is called a copyright license—like one you may get when you purchase a clip art collection disk. Licensing is the standard way the copyright holder delegates some or all of his rights to a work to someone else. Without the license, if you use the artwork, you are breaking the law. Usually the right to re-sell to or share the license with a third party is prohibited, since the license probably includes the term “non-transferable.”
Sometimes, copyrights and trademarks can overlap. If a graphics artist cuts and pastes a Mickey Mouse ears image onto a sign design without a license to do so, she’s violating both Disney’s copyright and its trademark. If she puts her own original drawing of mouse ears on a sign, she could be in violation of the trademark, if it resembled the ones Mickey dons. A good rule of thumb is “if you have doubts about whether it is legal or ethical to use a particular piece of artwork, don’t use it.” It’s not worth it.
The same goes for artwork that a company pays a regular employee or contractor to produce—it’s referred to as “work for hire.” The company—not the individual—owns the copyright. Copyright ownership belongs to the person or organization that pays for it to be produced. The same can be said for patents.
Obviously, the best way to maintain control over intellectual property is to keep it secret. The best example of this is the shroud of secrecy Coca-Cola created over its formula for the company’s flagship beverage. To keep absolute control over the formula for Coke, instead of patenting it, the company simply refused to divulge it to anyone who hasn’t signed a contract promising to keep it secret—and rumor has it, there are only three people in the world that have that information. It is a viable alternative to a patent, if you can trust your colleagues and confidants to keep your secrets. That’s your call.
The breadth and scope of intellectual property is immense, yet fascinating. An easy-to-understand book on the subject is Stephen Elias’s Patent Copyright & Trademark. He explains each aspect of intellectual property with an overview, definitions and current statutes. He cites other resources, such as books, software programs and websites. The book is a practical reference for any business owner.
At the end of the day, you will need to make an executive decision whether or not to invest in professional legal counsel for intellectual property issues. Choose wisely. The adage, “You get what you pay for,” definitely applies here. And smart legal advice doesn’t come cheap. Good luck.