Thursday, March 18 2021

Trademarks vs. Copyrights for Startups

by Traskbritt

Intellectual property law includes patents, trademarks, copyrights, and trade secrets and is an important consideration for any new business. This article will address trademarks and copyrights, but the law firm of TraskBritt can assist with any intellectual property law needs.

Unlike patent laws, in the US, the law conveys immediate copyright and trademark rights once your trademark is used in association with products or services and your original content is written down or recorded. However, filing for trademark registration, copyright registration, or both may be a good idea for your startup depending on your individual situation.  Trademarks and copyrights offer different protections. If you want to have a better understanding of what steps to take to protect your startup’s technology, keep reading.

Why Should You Obtain a Trademark Registration or a Copyright Registration?

Having a basic knowledge of intellectual property law is crucial to increasing the value of your business. You should begin thinking about the intellectual property during the early stages of your startup development to help build a stronger and more valuable company. Developing an intellectual property strategy will help you build a solid foundation for your business to grow from. A good first step is determining what assets you own that may be eligible for copyright or trademark protection. 

What Does a Copyright Protect?

A copyright is a form of intellectual property that protects original works of authorship. Copyrightable works include literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Under US copyright law, a copyright owner has the right to reproduce, distribute, modify, publicly perform, and publicly display the protected work. 

When Should You Use a Copyright for Your Startup?

A copyright is created the moment you have developed your work to the point that it is in a fixed and tangible form. This means that once you have created text for your website or recorded a video, these works are automatically protected by copyright and you are entitled to use a copyright notice, ©. Although you do not have to file an application with the United States Copyright Office to protect your work, registration is recommended for many reasons. A registered copyright provides public notice of your rights. Under copyright law, registered works may be eligible for statutory damages and attorney’s fees in successful infringement lawsuits. In addition, if you register your copyright within five years of publishing your work, it will be easier for you to prove that you had ownership rights in court because the registration is considered prima facie evidence of the validity of your rights.

Owning a copyright registration is advantageous because it will help you protect your work by demonstrating your rights and assist with stopping competitors from using your original material. Thus, to protect your startup’s assets, you should register any important materials so that you have the option to file lawsuits to address future infringement of your intellectual property.  An experienced intellectual property attorney can help you navigate copyright law and determine which assets may be suitable for copyright protection. 

What Does a Trademark Protect? 

A trademark is a word, phrase, name, symbol, logo, product packaging, or slogan that identifies the products or services of a particular company.  A trademark can help you build brand awareness by helping customers identify your company as a brand they can trust.  A trademark is always associated with specific goods and services.  Before investing in a new trademark, you should do a trademark search to make sure a competitor isn’t already claiming rights in a similar trademark. You can do a basic search at the USPTO, but a trademark attorney can assist with a more comprehensive trademark search. 

The common law trademark symbols – trademark TM and service mark SM – may be used without a registration.  The trademark TM and service mark SM symbols are advantageous in that they can be used for free without filing any paperwork and inform the public that you claim rights in the identified words. This may help deter others from using the same trademarks. However, common law rights are limited to specific geographic areas where you are actually using your trademark to sell goods and/or provide services. By contrast, a federal trademark registration conveys national rights. For this reason, it will often be beneficial to apply for federal trademark registration through the United States Patent and Trademark Office (USPTO). It is important to only use the registered trademark symbol ® after you own a registration issued by the USPTO.  

Among the benefits of owning a federal trademark registration are

  1. public notice of your rights
  2. nationwide rights in your trademark
  3. reduced costs of enforcing your trademark rights against others
  4. enhanced protection against counterfeiters, cyber squatters, and importers of infringing products.
  5. When Should You Use a Trademark for Your Startup?

A trademark can be a useful tool in building your brand. It can help you set yourself apart from your competitors, and may also help customers associate the goods or services you sell with your company, which may help you to cultivate customer relationships, foster customer goodwill, and help to build a stronger clientele. Potential investors may also look at your company’s intellectual property portfolio, including the trademarks that you own. Owning trademarks may be advantageous in the creation of your company because trademarks help protect the intangible assets of your brand. For these reasons, you should consider filing for a trademark to help build your brand and diversify your company’s intellectual property assets. 

Trademark filings can take place before you start selling products or providing services, so it is important to consider future trademarks at an early stage of your business. While a trademark application can be filed on an intent-to-use basis, the trademark office requires that you prove that you are using your trademark to provide goods/services prior to registration.

TraskBritt attorneys who specialize in your technological field can help you determine which of your assets should be trademarked or copyrighted in order to best protect your startup. For more information, get in contact with one of the trademark attorneys at TraskBritt today.

By Ashley Kennedy