The Small Business Owner’s Crash Course In Trademarks

Written by on January 27, 2013 in Career - No comments | Print this page

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Trademark SymbolEvery business owner faces the question of how to protect the products, services, and ideas they’ve worked so hard to create. While trademark law can’t be entirely explained in this one article, and the advice of a lawyer will undoubtedly be more beneficial, the following is a crash course in protecting your intellectual property.

Who Said Anything About Intellectual Property?

If you’ve come up with a creative idea, whether it’s a painting, a waltz, or a screenplay, you just created some intellectual property to call your own. If it’s an original idea that hasn’t been done before or been protected by another entity, you therefore own the rights to your intellectual property.

But wait a second; you thought you were reading an article on trademarks, not intellectual property. Don’t worry, you’re still in the right place. Trademarks are a form of intellectual property, which means you can trademark certain properties either you or your business have come up with.

As a business owner, it is in your best interest to ensure the ideas you’ve created stay safe and protected. Otherwise, anyone could simply lay claim to your designs, slogans, or logos and potentially sue you for infringing on their legal rights! It’s a tricky matter but keep reading to learn more.

A Trademark Is Not A Trademark Is Not A Trademark

When you’ve come up with something really great for your business, you’ll certainly start to think about protecting your rights to it. But does it need a trademark? Or what about a copyright? Maybe you should take out a patent?

The various types of marks out there can be confusing, and in fact, it’s best to get a lawyer to help you pick the right one for your new business idea. However, here’s a basic rundown of the most popular kinds of intellectual property.

Patents:

Patents are primarily used for inventions such as a new machine, a manufacturing design, or even creating a new kind of plant.

Over the past few years, it’s been almost impossible to avoid hearing about the ongoing patent infringements that Apple, Samsung, and several other smartphone manufacturers have been accusing each other of.

When you create a new device, for instance, you patent its design, process, materials, and/or all of the above so nobody else can make the exact same product and sell it for their own profits.

Copyrights:

According to the United States constitution, copyrights are given to the authors of original works. Any artistic form of expression from music to novels can be copyright. Blog posts, plays, and even jokes can be copyrighted by the author, meaning they own the rights to their creation and have the ability to grant other’s permission to use their creation or sue them if they use it without a proper license. Other copyrighted works can include software, codes, and even dance moves.


Trademark:

Finally, a trademark is defined as words or images that are directly associated with a company or product. From the McDonald’s yellow arches to the simple Nike swoosh, trademarks often become well known associations.

Most businesses will hire a designer to create a logo for use on their website, business cards, and stationary that can be any combination of words and images. This is what most companies prefer to trademark, but in some cases, can also be copyrighted to ensure they remain the sole users of the design.

For your new design to be eligible for a trademark, it must be unique. For instance, simply turning the Nike swoosh upside-down and coloring it in turquoise is not enough to become a distinctly different mark.

Most likely, Nike would still have grounds to sue you for attempting to use their globally known design. Unfortunately, this means that the use of generic graphics in your logo might not be granted federal protection, even if it’s one a designer has created specifically for you.

If your church decides to use a particular image of the cross for it’s website and pamphlets, it might be tricky to trademark because you would essentially be trademarking the image of the cross that has been used for a couple thousand years by millions upon millions of people. However, a trademark lawyer might be able to find a way to offer some protection to your particular cross graphic.

Furthermore, your company name, product name, or logo design might have to convey a direct or secondary meaning to be granted federal protection. If your product name merely suggests what the product is or does, its protection might not be as high as a product or service whose name is arbitrarily correlated. Yes, it does get confusing so seek the advice of a lawyer before you register.

While registering a trademark isn’t necessary, protecting your company, yourself, and the intellectual property thereof are important factors in running a successful business. While many might say that imitation is the highest form of flattery, seeing your product’s name or company logo used for someone else’s profiting can be heartbreaking. Make sure your hard work is protected and seek the advice of a lawyer to find out how trademark law can benefit you.

This is a guest post.  Written by Pete Wise for Hauptman, O’Brien, Wolf & Lathrop, whom are dedicated to serving Nebraska. Their approach of treating every client as their own unique case differs from the cookie-cutter methods of many others. Their successes defeating the rights of those in the Omaha area are numerous; so contact them if you want the best Lawyers in Nebraska.

Image courtesy of Stuart Miles / FreeDigitalPhotos.net

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