Copyrights vs. Trademarks - 010

Law and Wit Creative Council for Entrepreneurs. This is episode number 10, Copyrights versus Trademarks. Welcome to Law and Wit Creative Council for Entrepreneurs. I'm your host, Brittany Rettell, mother of 4, entrepreneur, naptime lawyer, and attorney for creative entrepreneurs. I'm here to share inspiration and action so that you can tackle your business blocks and confidently own your business in every sense of the word. Thank you so much for being here. Hello and welcome back. I'm your host Brittany, and so glad you could be joining with me today. If you missed my last episode, I had my friend and brand development strategy extraordinaire expert Noelle Nicolai on, and Noelle has pretty much the most amazing job ever. She kind of had to keep it on the down low, as she probably does everywhere she goes so people don't put a hit on her head to try to kill her for her job. But she manages a worldwide luxury hotel brand, actually a large brand hotel conglomerate and all their brands anyway. And she dropped a bunch of knowledge about what it's like to work for a company like that and to do brand development strategy, what's happening in the marketplace, what she loves when she's working with influencers, what she hates and what's put her teeth on edge, and basically gives the flat formula for how to pitch someone like her and a job like that and be able to get a really sweet collaboration if you're looking to work with someone in the travel industry. So anyway, if you missed that, please listen to the previous episode, episode 9. And with that, I want to move forward to today and what we're talking about today. And we're going to be talking about copyrights and trademarks. And my intent is for this to be kind of a quickie because this is just a question I get a lot and I want to, you know, give you a good synopsis, kind of an overview of copyrights versus trademarks so that you can feel more confident as a business owner making decisions about where to put your money and your strategy as you're trying to protect your content. I'll have to give my little disclaimer that I am an attorney licensed here in Utah, but I'm not your attorney unless you want me to be, in which case please go on over to my website, brittanyratelle.com, and you can reach me on there. You can email me, you can set up a I do consultations on phone or Skype where we can talk about your business. We can get an engagement letter signed. We can make it all official. So that's a way to work with me if you're interested in hiring me for legal services. But for anything we talk about today, this is going to be informational purposes only. Obviously, I don't know your specific fact scenario or your specific business, so I, you know, the information won't be tailored to you.. But it is general US federal trademark law, trademark and copyright law, which it is federal, which is kind of the only one of the only few areas that is, which is actually really nice. And so it doesn't really matter where you live in the US or if you do business in the US for my international audience members, it's, it's good to have a good knowledge, working knowledge of this stuff so that you can feel prepared in your strategy and what's going on. And because you see a lot of these words sort thrown around and bandied about the internet, but it's nice to know what's actually separating the Google Law University BS versus actual law. So, okay, let's get down to it. Copyrights versus trademarks. So basically, in the US, copyrights protect a work of authorship that's fixed in a tangible medium, and it needs to be an original work of authorship. So that's, of course, the boring legal definition, which is not helpful to you at all. So what we're talking about here is it needs to be something original that came from your brain, wherever the ideas come, you know, the light bulb came on, you created something and you put it in something else that can actually be like perceived, viewed, listened, watched, you know, somehow communicated and reproduced to someone else. So that means even scribbling on a napkin, As soon as it's written down somewhere, you're in a restaurant or whatever and it came to you, you put it down. Does it mean if you're in the shower and like you write it on like a foggy tile, is that going to do it? Well, no, because it's not actually fixed in the medium. So hopefully that gives you kind of, yeah, a quick of like, oh, is it actually fixed? And it does not have to have the little special C with the circle on it that's such a pain to find when you need to put it in. I know someone who does that a lot in legal documents. I'm always having to go and do like insert symbol in the browser, and I really wish there was a shortcut, or I'd memorized it. But anyway, it's a pain, just to let you know. You actually, you don't need that special symbol. Is it a good idea to have on your information to put people on notice? And because, you know, a lot of other people are not listening to this podcast and they won't know that, sure. So I do recommend that people put it on. And so, you know, especially so that you can identify your stuff when it's out there in the marketplace and on the interwebs doing their thing. Along with the year and usually the phrase "all rights reserved" or something similar. Because that's basically telling the world, "Hey, I don't know what your plans are with this. You know, I'm not going to be in your business, but I'll tell you what is my business, which is this thing. And it's mine and I'm reserving all rights because I'm not sure what I'm going to do with it yet. So until I do, I'm going to hold on to my whole bundle of sticks." So which is what we— when we talk about intellectual property law, you'll hear a lot of people talk about the bundle of sticks. And what we're talking about there is all of the rights that you have when you create something. Something. And when you are the creator, you automatically have all those rights, and you get to decide how you're going to, you know, throw and divvy out those sticks to people. Um, and the mistake that a lot of people make is they give away those rights too cheaply or too soon, and they don't hold on to rights, or they think that they still have a lot of rights when actually they've contracted them away because they didn't know what they were signing, or there were just— there weren't clear expectations there. Um, you know, you can talk to the some of the heroes of Star Wars movies about how much it sucks to not take, you know, some of the rights that you have to merchandise sales and to just take a flat fee for a movie. That sucks. That sucks when you're still watching, you know, Star Wars lunchboxes being paraded on decades and decades later after the movie release. And yeah, that was probably a stick that it would have been helpful to hold on to, that lightsaber there. Anyway, that's slightly off topic, but you get what I'm talking about in the bundle of sticks. So it's good to know what your rights are and to make sure you're holding onto them. So the entity that controls all the copyrights is the US Copyright Office. So if someone infringes on your copyright, that means that they are using your creative work either exactly the same or it's so similar that they're clearly infringing on your right. And you can have infringement. Again, you do not have to register. The reason why you might want to register something that you've created is because you get some extra benefits. Meaning if you register something with the Copyright Office, and it's a pretty simple process, you go on, it just takes a few minutes, it's pretty cheap, it's under $100, it's a fairly easy form, you upload your thing, you get to, then if someone infringes it, you can sue them for it. You actually can't file a lawsuit for copyright infringement until something's been registered. So that means if you design a really sweet T-shirt and someone copies the artwork, the original artwork design on it, and you find that and you want to stop them, you can then register and go after them. But it's not as smooth after the fact. And you also get to have attorney's fees, which is obviously really helpful if you're going after someone because litigation's expensive. And threatening litigation and having it be a valid threat can even be expensive because you're then hiring an attorney to write a, you know, a very scary cease and desist letter on some really thick, you know, cardstock. To really make the point, hammer that point home. So anyway, those are some benefits. So that's why it's worth it to register. So it's good, you know, every once in a while take a little IP audit of what you have and decide if it's worth registering copyrights. I advise a lot of my clients, and when I do my little weekly Q&As on Instagram Live, I do every Monday afternoon, kind of midday, you know, I'm there and people can jump on and ask me questions. I get a lot of questions about copyright and 'Can I do this myself?' and 'Do I need an attorney?' And my usual advice for people is trademarks, which we'll go into next, are a little trickier. And I, I really do advise having an attorney for that just because I see it go wrong. And, you know, I'm, I'm checking the trademark database and searching in all the time, and I see so many things that I can tell were abandoned and they didn't get replies back on it. Anyway, we'll go into how, why that happens, the. But it's, it's a little trickier process, I will say. Um, you know, of course, completely self-promotional that, um, that I happen to sell that service. But copyrights, you can, you can definitely do on your own. Um, you can also hire an attorney and it makes it easy, and they might advise you about which things are going to be in your best interest. And they can kind of make it slick because they can do it all at once. If you have tons of stuff that you want to copyright, they can put it together in a collection and make that easy. So that's something that you might want to consider when you're looking at that process. Okay, trademarks. So a trademark is a single word, a short phrase, a design, or a symbol, or combination that identifies or distinguishes the source of the goods or services. So again, another long legalese description, but trademarks are designed to actually protect the consumer. Most people, most business owners, I'm sure like yourself, are probably under the impression that, oh, the trademark gods designed this, the trademark, to protect me as a business owner because I built this wonderful product or service and I put my name on it, dang it, and I'm gonna protect it and this is for me. Kind of what a copyright is. And they actually don't care about you. The point of trademarks is to protect the consumer. It is the end user of the product or the service because the rationale is that whoever is the one who's actually using services They need to be able to distinguish who, what they're buying stuff from. And they need to know to be able to distinguish whether this is authentic, real, good from, you know, is this a real Louis Vuitton purse or is this a knockoff? And if you don't have protection of trademark, if anyone can use those symbols, those words, even smell, sound, colors, those are less common, but you can still trademark some of those things and some people have been successful. And make, and they're so distinct in distinguishing those, then how can you tell that you've got a real Louis Vuitton purse? And I don't know, anyone who's visited any Chinatown anywhere in the world will say, well, yeah, obviously that hasn't worked out too well. And but that's, you know, neither here nor there. That's all about the perils of overseas manufacturing and, you know, race to the bottom. But the point is, is that a trademark is supposed to actually protect the source of goods. And that's why you have sometimes people, you know, get really nitty-gritty in terms of protecting trademark dress. That's one that's not as well known, but it can actually protect the way the visual, you know, almost layout of your store or your restaurant, or the way SNMSAC can help protect packaging. That's a strategy that some people use, you know, your packaging and the way your, you know, your item is dressed. And it's delivered to people is so unique and so distinguishable that you actually want to trademark that and protect that so people can't do it exactly like you do. So those are kind of some other strategies that you can think about. And the bottom line is, what does this all mean to you as a creative business owner, as someone who maybe is a content creator or a photographer or graphic designer, or you maybe run a product-based or service-based business? The, the point is, is that it's it's good to take a look at what you have that's worth protecting and what have you built in your business. Because when I start to talk to business owners about what they have, and sometimes people are like, oh, you know, I, I don't really know if I need to spend any money on that, and that really sounds expensive. And I, I understand. Um, but what I, I can probably relate to and what I'm sure most people can is that your, you know, at least the name of your business probably means something to you, especially if you've been at it for a while and you've devoted significant time and resources, blood, sweat, and tears, whatever, that you've built in your business. And if you're— even your name of your business is significant to you, if it influences your brand and your brand identity, architecture, the way that you communicate, your packaging, if it's, you know, you've got your domain name and now all your social media channels, if all that is kind of important as the picture of your business as your whole little world, um, then it's probably time to protect it. Because even if you have all the social media channels locked down— I'm using big air quotes with that— and a domain name, um, that is not trademark protection at all. Um, even if you have an LLC in the name of your business, which is great, I hope you do, um, because I talk about that all the time. And go back and listen to, um, episode what is it, episode number, um, 4 about LLCs, um, if you haven't, about why you need one. So, um, but that's still— that's not the same thing as having a trademark. A trademark has to be conferred by the U.S. Patent and Trademark Office, the USPTO. So, um, and it takes, you know, 9 months to 18 months to register. It's expensive. The filing fees alone start at $250 and then go up for each kind of type of good or industry, class of goods that you're trying to register, and you get a big official certificate. Yeah, if you don't have any of that stuff, if you haven't gone down that path, then you do not have your business trademark. So it might be in use, and we call that a common law trademark, and that can be the first step in that process, is that you are using it in commerce, you're actually selling it, and you'll see people use the TM with the circle symbol, and you can do that as a common law trademark. Before something has actually been registered with the office. However, you don't get a lot of the benefits similar to copyright. You don't get a lot of the benefits in terms of enforcement and being able to stop someone else from using it until you've actually registered the trademark. So there, there are a lot of reasons why it's worth it to go down to that process. So, but again, you know, if you've built a whole identity around your brand and your business name, you know, it's probably gonna hurt your feelings and probably even more than that, hurt your business if someone starts to hijack your name or have something really, really similar, especially if they're selling a similar product that would be confusing to your audience, to your customers, to people that you have built a relationship with. And if you haven't trademarked your business names or trademarked your main products, your logo and other things, then they're kind of up for grabs. You know, it's a true story, and I have people contacting me all the time who are under the assumption that they protected that information because they've done some of these other steps that I mentioned. But if you haven't trademarked it, then you haven't. And the reality is that as a business owner who's trying to especially think forward and think about where you might want to take your business, you need to be strategic about what opportunities are available to you.. And if you don't register your trademark, if you only limit yourself to a common law trademark, you're only really protecting yourself in the immediate geographical area that you're operating your business. Now, that gets a little interesting when we have online businesses. We have businesses that are completely run online or have a significant element that are run online and goods are sold different places, which is all the more reason why you need to look into a federal trademark to protect your goods and services. And that not only with that will come a really good search of what's out there in the marketplace, because if you have a problem and there's a, you know, a mark or there's a company that's very similar to what you are using or you plan to use, it's better to know now than later because the odds are that it's only going to get more expensive and more of a hassle to change, you know, everything from your signage to business cards, domain names, website. You know, lots of other things that you've invested in that. And so it's really good to have someone do a really good searching— searching search— a really good broad and deep search in the right areas to make sure that there's not someone operating a similar type of business as you are. Now sometimes I get questions from people saying, well, I found someone but they're doing a completely different type of business. And if that's the case, then you might— your name might still be safe, but that is why you need to talk to someone who is a trademark attorney so you can have that discussion of what exactly are they selling, and do they have— have they registered their trademark? And if so, then what class of goods or services is it in? And what do you plan on selling? And maybe do you plan on expanding? Because say you are just in apparel right now and you're just selling t-shirts with something. Maybe you have an Etsy shop and you are selling some cool design. That's awesome. But what if you want to expand to mugs? What if you want to do craft kits? What if you want to do courses and whatever kind of technique you use to make what you make? You can see how your business can, you know, the sky's the limit when you start thinking about where you want to expand. And when you haven't taken the steps to talk to someone about it in terms of strategy and where you want to go, you just, you might be limiting yourself down the road in terms of what your options are. So that's another great reason to talk to someone about it, get that cleared up, get a really good search on the books so that you know where you stand and where everyone else stands who's in the relevant marketplace. The other really great reason you want to register is because you can get damages and you can actually file an infringement suit. Again, you can't file that suit, you cannot get in the courthouse door to put your, you know, suit out there and say, you know, you've been served, I want to sue you, unless you've actually filed and have gone through the trademark process. So another good reason why you want that threat of a lawsuit to have teeth to it. And if You know, I will put the caveat in, if you're the type of person who you would never, ever, ever sue someone, then maybe, maybe you don't need a trademark. Although maybe just don't tell anybody that, just keep that on the down low. Because there is an aspect to trademark protection that if you are not willing to protect and litigate against your trademark, if you're not willing to take action against someone else who's going to use it and infringe on it, then it could be diluted in the marketplace. And from the Trademarks Office perspective, they're going to say, well, look, wait a second, you said it was really, really important that people knew that this stuff was coming from you. That's why we gave this to you. That's why we went through this whole song and dance and you gave us the paperwork and you went on the crappy government website and filled out the whole thing. And now there's people who are using the exact same name or logo or mark and you don't care at all. Seems to be a little disingenuous. So you want to make sure that your brand, your company, is in a position to defend that when you need to, to make sure that you are not going to lose your protected status and that your trademark is going to be made pure. The funny thing that you see about this in the debate, and you can see sometimes why companies make a big PR publicity stunt out of it, is that when trademarks get turned into generics. And a great example of this is Kleenex. Have you ever asked someone for nasal tissue, you know, or tissue paper? Probably not. You've probably always asked, "Hey, can I have a Kleenex?" So, but Kleenex is not the name of the product, it's the name of the brand that they trademarked. But it's a little bit like Xerox. It's become so ubiquitous with the way that the product functions that, you know, there can be an argument that they've actually lost their brand, their trademark, because it just describes what it does, what it it doesn't describe the actual source of good. So you can see Google's name is getting a little nervous about this as well. You know, as we talk about, oh, Google this or Google that, which really means put into a search engine and on the interweb and look for results. But of course, no one's ever going to say that. So anyway, that's, you know, super nerdy lawyer stuff. If you're interested in, you know, IP lawyers really, really get into that. So, okay, hopefully that gave you some clarification into kind of IP and trademarks versus copyrights. As a creative business owner, what I see this in practice is that most people want to trademark the name of their business. A lot of people want to trademark their logo. That's important to them and they use that a lot, especially if it's being used on products to distinguish their goods. And sometimes a slogan, if a slogan or, you know, a short little phrase like "Just Do It" like Nike is really important to your to your brand. Copyrights are great for pretty much everything else, everything from books, songs, to websites. Some people actually copyright their website, and that includes other content. Now keep in mind, and as soon as you change your website to a significant degree, that doesn't, that doesn't protect it anymore because now you've made a new original work. So some people have a schedule where they'll, you know, renew and register their copyright every year or every you know, quarter or, you know, every other year depending on how much, you know, content is really being changed on your website and how much of a driver. But people can also copyright, you know, courses that they have, online materials, obviously graphic designs, artwork, photographs, you know, all of those creative works lend themselves really well to being protected by copyright law. So I hope that's given you some food for thought in terms of thinking about your own works and what do you have and what money may be sitting on your computer and in your business files that maybe you haven't looked at in that direction. And maybe it's time to, to talk to someone, to me or to another attorney, about what you can do to move your business forward and to think about the next steps in terms of protecting your intellectual property, especially if you're thinking down the road of kind of moving into those bigger areas, you know, of upscaling your business like book deals and licensing membership websites, turning products into, you know, information, or turning services, one-on-one services, into informational or digital products. That's— those are some really great junctures to think about what— how is your intellectual property doing, and where have we maybe let things slide, and now it's time to, you know, to make some investment here so that you can invest in your business and really see it through to where you want it to go. So thanks so much for joining me, and if you've enjoyed what you've heard on this episode today, I'd love for you to share with a friend or fellow entrepreneur. And if you can, leave a review. I've got a few new ones on the Long Wit on iTunes that I really appreciate, and I'm gonna read one now as motivation. So if you leave me one, and I read them all and they're really meaningful, to me. Here's one from G with Mori titled, "Very informative. Love learning about a lot of legal issues involved with running a business. As a business owner, you can never be too informed about the legal side of running a business, and Brittany does a great job of informing the listener in an engaging way." So thank you so much for writing that. I really appreciate it. The reviews mean a lot to me, and the way that iTunes does their algorithm of having ratings and reviews makes it so that other people, when they're searching for information in this area, that my podcast can be available and can come up and, you know, be viewed as actually a legitimate source of information for people who are trying to get help with their creative businesses and moving forward, getting information that's easy to use, digestible, and completely free. So there you go. Thanks so much for tuning in, and we'll see you next time. Bye.