Most small businesses own written content (websites, promotional materials, a product such as a book or a song) or images such as a name, a logo, or a marketing tagline. These are all types of intellectual property, and it needs protecting to make it harder for others to steal your ideas or use them without your permission.
There are two basic types of protection. A copyright protects written items, music, computer programs, artistic works, books, publications, websites. A trademark protects images, such as business names and logos, and taglines.
If another person or company wants to use your copyrighted or trademarked material, they must get your permission, which may include paying you a fee (a royalty) if you decide to charge for the use of the material.
How do you get a work copyrighted or trademarked?
There are two ways to secure a copyright. Under current law, you do not need to formally register your work. The law assumes that once a work is made public, it is copyrighted (note: not “copywritten,” as some pronounce it). Some people will add a “c in a circle” symbol on the work, but this is not necessary.
A more formal way to copyright your work is to register it with the U.S. Copyright Office at the Library of Congress. The detailed instructions are available on their website. In short, you fill out a form, pay a fee, and file the form, whether by U.S. Postal Service or electronically. You then list the copyright date and owner on the work. The copyright is good for 70 years from the date of creation.
Why is it worth paying the fee and filing the application with the U.S. government? If you decide to enforce your rights as a copyright holder, having the formally filed copyright provides proof that the work was actually produced at the time you claim it was. If you decide to sue the individual or company who took your idea, you can sue for monetary damages in addition to having the court order the infringer (the person who used your idea) to stop.
Another advantage is that a registered copyright provides greater worldwide protection. The United States is part of an international copyright agreement, the Berne Convention, that is honored in many countries around the world.
Trademarks are legal protection for company names, logos, taglines, and similar intellectual property. An example of a trademark is the Starbucks name (R) and logo (image of a mermaid). A tagline example is “You’re in good hands with Allstate” (R).
Before deciding on a company name, logo, or tagline, you need to check the Registry of Trademarks. They list all currently registered trademarks. You don’t want to choose a name or image that is already registered by someone else. In addition, you don’t want to choose a name or image that is so similar to a registered trademark that it will cause confusion for potential customers or clients.
To register a trademark, follow the instructions at the U.S. Patent and Trademark Office. Trademark protections last indefinitely, as long as you file regular “declaration of continued use” statements.
The United States is part of an international convention, the Madrid Protocol, that will give your registered trademark protection in many countries around the world.
Once your trademark is registered, you can bring legal action against anyone who uses your trademark without permission.
How do I know if a work is copyrighted or trademarked?
Check the work itself for specific notice of copyright or trademark, then check the USPTO website to see if a name, logo, or slogan is already registered by someone else. Remember that any written work that is “published” – including posted on the Internet – is under general copyright protections.
When in doubt, assume that the work is copyrighted or trademarked. This is the safest way to protect your business against legal actions for violating copyrighted or trademarked work.
When do I need a lawyer?
Some experts recommend having an attorney register a trademark.
If your copyright or trademark is being used by another without permission, you will need a lawyer to enforce your rights. This is expensive and time-consuming. (For example, a recent case involving the song “Happy Birthday” took three years and cost $4 million in attorney fees.)
If you are accused of using another person’s copyrighted or trademarked work without permission, you may need an attorney to defend yourself.
To learn more about different kinds of intellectual property protections, register for our upcoming workshop “The basics of intellectual property.”
Barbara Grumet recently retired as dean of the School of Professional Studies at New York City College of Technology in Brooklyn, a campus of the City University of New York (CUNY). Prior to joining CUNY, she was executive director of the National League for Nursing Accrediting Commission (now called ACEN), a nonprofit responsible for accrediting more than 1,200 nursing education programs across the country. Her other experience included executive positions and faculty appointments at Long Island University Westchester campus, the Sage Colleges in Albany, NY, and Albany Medical College. Her academic field is health care policy and health care law. Ms. Grumet received a JD from New York University Law School and a BA from Denison University. Barbara Grumet is a SCORE NYC mentor.
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