(Written by guest contributor Kevin E. Houchin Esq.)

Last week we talked about the importance of understanding the various aspects of business formation and patents. This week we cover copyrights and trademarks.

COPYRIGHTS

Copyrights protect the tangible expression of your originality. That means you have to DO something with your idea. You have to write the computer code, design the logo, paint the composition, write the poem, film the video, write the novel, sculpt the form, or perform the dance. You should document the date of your creation, but know that protection vests at the moment of tangible expression. You don’t have to publish the work, use the © symbol, or file a registration with anyone to have copyright protection for your creative work. So why should one register a copyright at all?

Unfortunately, in many creative business situations, having a righteous beef against someone and having an economic justification to enforce that righteous beef are two separate things. In copyright violation situations, unregistered copyrights are only eligible for injunctions (to make the infringement stop) and/or “actual damages.” Plus, with a few exceptions, both sides have to pay their own legal fees. Actual damages can be very hard to prove and wouldn’t even cover the legal fees in most situations. That’s no fun, thus the motivation to register your copyrights with the Copyright Office of the Library of Congress (www.copyright.gov).

When you pay the $45, send in the simple 2-page application form, and assuming your registration comes through, two major things change. First, attorney fees are on the table. This means that when you want to smack someone for copyright infringement, you’re probably not going to end up having to eat your attorney fees. The other side will be forced to pay your fees due to their infringement. Second, you don’t have to prove “actual damages.” You can let a judge award “statutory damages” of anywhere from $750 all way up to $150,000 per infringement. That’s nice. Now you have an economically justifiable motivation to enforce your rights.

If you’re in creative business, consider the $45 copyright filing fee the best insurance premium on the planet. It makes all the difference in the world and should be a standard part of your normal business processes. And, since the fee is so low, you should do this work yourself.

TRADEMARKS

Finally, you must build a strong brand. This is the area where marketing and trademark law overlap. Trademarks can be anything that indicates a source of goods or services. Names, logos, slogans, packaging designs, colors, or interior designs for stores or restaurants can all be trademarks. You want to create a distinctive mark, which is something that moves beyond a “mere description” of your goods or services. The best way I’ve found to explain this is to think about when you hand your business card to someone. If they do not have to ask what you do, then your trademark must be merely descriptive of your goods and services, and thus it lacks the distinctiveness for trademark protection. If they have to ask what you do, then your mark must be at least “suggestive” of what you do and may be something very distinctive like the made-up words we know from the pharmaceutical industry. That cognitive gap between your mark and what you do has to be filled with some form of investment in marketing, even if it’s just a conversation. Trademark law protects the investment you have to make in answering the question, “What’s that?” or “What do you do?” The more you’ve invested, the stronger your trademark protection should be.

Trademark rights vest when you use a mark in commerce. It’s not a race to register your mark, it’s a race to USE the mark. You can, and should, start using the “TM” symbol as soon as you use the mark to offer your product or services. If you’re in a fast-moving industry like software, you should consider filing an “Intent-to-Use” trademark application with the USPTO as soon as you settle on a name for your product or service, even if it’s several months before you’re planning to launch the brand. Intent-to-Use filings set a “constructive” date of first use at your application filing date, which can come in very handy if someone else has plans to use the same name you’re considering.

Trademark law can be confusing and the forms are relatively complex when compared to the copyright forms. The filing fee is a non-refundable $275-325 per mark, per classification. So, get some qualified help on your trademark strategy.

I love seeing people reach their full potential. Honestly, I think creativity is why we’re here on the planet. The meaning of life is to add good stuff to the planet, and we do that through finding our unique way to contribute and building our livelihood around those contributions. Reach for your full potential by building your future through creative business, and help return our country to its former position of leadership.

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