How to Legally Protect Your Brand

You have a stand-out brand—now it’s time to start thinking about protecting it.

Whether you realize it or not, there are a lot of forces at work that can steal your identity from under you.

Nowadays, there are not just infringers and outright thieves, but “trolls” who beat unsuspecting victims to the legal registration punch and ransom those trademarks, copyrights and patents.

When going through the process of keeping your brand secure, you will run into many different terms that share similar concepts. As you may have quickly found out, this can get confusing rather quickly.

You will run into three main terms: trademarking, copyrighting and patenting.

It’s important to understand these three terms, what they mean and how that relates to your brand.

Let’s dive in.

Trademarking

What is a Trademark?

Simply put, a trademark is a symbol, smell, color, sound, word or phrase that is legally registered or used to represent a company, product or service. A classic example of this would be the CocaCola script or the Twitter logo.

Trademarks usually last the lifetime of the brand as long as it is being used correctly.

How This Relates to Your Brand

In the brand protection process you should trademark your:

• Logo
  • Ex: Top Hat IMC logo (top hat and mustache seen in the navigation above)
  • You may also need to copyright this as well
• Company name
  • Ex: Top Hat IMC
• Signature scent
  • Ex: Chanel No. 5
• Signature sound
  • Ex: That noise you hear when you start up your Mac or PC
• Signature, custom typography (font)
  • Ex: CocaCola typography

Can I Transfer or Sell My Trademark?

Yes, you can sell or transfer a trademark. Unregistered or pending trademarks can also be sold or transferred.

In order to make sure the process is complete, however, you will need to document the sale or transfer and record it with the United States Patent and Trademark Office (USPTO).

Copyrights

What is a Copyright?

A copyright is the protection of original authorship: more plainly put, it mainly secures original literary and artistic works including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture

Copyrights have expiration dates as well, but the duration is much longer than that of a patent. If a work was created after January 1st, 1978 then it will last for 70 years after the author’s death. For small business works, the copyright can last anywhere from 95 to 120 years. This is all dependent upon the creation date of the work.

How This Relates to Your Brand

In all honesty, if you’re a fairly standard business or organization, trademarking will cover protecting 90-100% of your brand assets.

Copyrights are more “artistic” in nature. A lot of logos may qualify for a copyright in addition to a trademark. Always trademark your logo first and then see if copyright applies as well. Some logos really blur the lines, so it’s helpful to check with a trademark attorney. If you submit your logo to the USPTO, the worst they can say is “does not qualify.” It’s often worth a look.

In other senses, eBooks, illustrations and photos would technically qualify.

Do I Have to File for These?

Filing copyrights is totally voluntary. The works mentioned above are technically copyrighted upon their creation. In order to file a copyright infringement, you would have to file the complaint formally.

Our recommendation is to definitely file the copyright for your most important assets. It’s just a safety measure to give you documentation to go head-to-head with a copyright infringement case, which often can be solved by serving up your papers to someone offending them without going to court.

Patents

What is a patent?

A patent is a lawful right or title for a specified period of time that prohibits others from unlawfully using, producing or selling an invention.

Patents come with an expiration date. The average patent lasts somewhere between 14-20 years, but this depends on the type of patent. Utility patents are generally good for 14 years while design patents last for up to 20.

By getting a patent granted, the U.S. government is giving you the exclusive right to prohibit others from making, using or selling your work.

There are three types of patents to be aware of:

1. Utility (function)
2. Design (aesthetics)
3. Plant (botanical plants)

In truth, if you’re in a crowded industry where most of everything has been done already, it might be hard to get a patent. Most all patents given out nowadays are for breakthroughs that are better than their counterparts.

According to LegalZoom, here are some other things to keep in mind:

“A patent cannot protect an idea. Instead, the idea must be embodied in one or more of the following:

• A process or method (such as a new way to manufacture concrete)
• A machine (something with moving parts or circuitry)
• A manufactured article (such as a tool or another object that accomplishes a result with few or no moving parts, such as a pencil)
• A new composition (such as a new pharmaceutical)
• An asexually reproduced and new variety of plant.”

How This Relates to Your Brand

The visual aspects—visual identity, website, etc.—of a brand are one thing. Patents would go beyond that into your actual offerings as a business. If you’re producing or inventing something that fits the above criteria. then you’re going to want to consider getting a patent.

Special Cases

When Would I Need to Utilize Both a Trademark and a Copyright?

There are certain instances where you will need the protection of both a copyright and a trademark. This occurs, for example, when you have a logo that has a lot of artistic components.

A simple logo, symbol or unique typography may not need to have both for security, but if an artist has taken a great deal of artistic liberty, then the brand may be extra coverage.

How Do I Get Started?

The first course of action you will want to take is to make sure that your brand falls under the trademark category. You can do this by going to the United States Patent and Trademark Office website. On here, you will find all of the information needed to determine the type necessary protection for your brand.