FAQs: TRADEMARKS & COPYRIGHTS

What is the difference between trademarks and copyrights?

Trademarks and copyrights are both forms of intellectual property.  The USPTO defines trademarks as "a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others."  Similarly, a service mark identifies and distinguishes sources of services as opposed to goods.  A trademark's purpose is to protect the mark holder's brand.  

 

Copyright applies to original creative works, such as literary or musical works, photos, designs, artistic works, computer software, and architectural works.  The work must be fixed in a tangible medium of expression (i.e. copyright does not protect ideas, but rather the expression of ideas).

I received a cease-and-desist letter.  What should I do?

 

Receiving a cease and desist letter regarding a trademark or copyright can be an alarming.  Many businesses may have no idea that another entity has priority for a trademark or copyrights in a work.  Nevertheless, a cease and desist letter should be taken seriously by a business or entity receiving it.  It is important to discuss the mark or work at issue with an attorney who can advise you on the validity of the claims in the cease and desist letter, and who can represent you in discussions with the entity claiming infringement. 

What happens if I don't register my trademark?

 

In the United States, registration of a trademark is not mandatory, and you may establish "common law" rights in a mark by using the mark in commerce.  However, common law rights in a mark will extend only to the specific geographic area where the mark is used, as opposed to nationwide exclusive use for registered marks.  Registering your mark with the USPTO also creates public notice of your ownership in the mark, and provides you with the ability to bring actions in federal court to protect your mark.

What happens if I don't register my copyright?

 

Copyrights exist automatically whenever an original work is created.  The person or entity who created the work immediately has copyrights in the work and has the exclusive right to publish and distribute the work.  However, registering copyrights provides additional benefits.  The most important benefit is the ability to file a lawsuit if someone infringes on your copyrights, which is generally unavailable to holders of unregistered copyrights until they are registered.  Furthermore, if the copyright was registered prior to the infringement, a copyright owner may seek an award of statutory damages, which is a set amount of monetary damages regardless of the actual monetary damage suffered due to the infringement.  Registering copyrights also creates a presumption of ownership if they are registered within five years of publication of the work. 

What are some reasons why the USPTO might deny registration of a trademark?

The most common reason for the USPTO to deny registration of a trademark is because of a "likelihood of confusion" with other marks.  Determining whether there is a likelihood of confusion between two marks requires an in-depth analysis of multiple factors including the similarity of the marks in their sound, appearance, meaning, and commercial impression, as well as the relatedness of the goods or services upon which the marks are used.  Marks are also considered either "strong" or "weak", with strong marks being easier to protect than weak marks.

 
 

 

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