To Trademark Or Copyright? Options For Protecting Your Brilliant Idea

Starting a new company or creating a new product can be exhilarating and terrifying at the same time. One of the thousands of things you have to consider is 'how do I protect my idea, my brand or my product?' As I start another new venture, the same question kept arising--should I trademark or copyright? Alexandre Montagu, author of Intellectual Property: Money and Power in a New Era, took time out to answer a few basic questions that may be of use to you as well.

DAYNA STEELE: What is the difference between a copyright and a trademark, and how does a sole proprietor decide what is best to protect his or her interests?

ALEXANDRE MONTAGU: As a general matter, trademark protection is available for product names, while copyright protection is available for original expression (e.g. screenplays, music lyrics, and software code).

Do you have to trademark something? Isn't it protected if you can prove when it was created and what area it covered?

As a general matter, in the U.S., trademark rights arise through use; however, there are advantages to obtaining a registration, including nationwide priority.

How does a sole proprietor search to see if there is already a trademark for a name or tagline wanted?

The Trademark Office has a free searchable database, and there are also more sophisticated databases through third parties that are fee-based.

Can a long-held URL address be considered protection enough for a company name, brand and/or tagline?
It would depend on the particular facts, but as a general matter, a URL address without anything more will likely be insufficient to establish trademark rights.

If there is a brand name and a tagline, do you trademark each separately?
This will depend on the particular facts and circumstances, but as an initial matter, the ability to seek registration will depend on how the marks are being used-- if the brand name and tagline are used in a manner such that they form separate commercial impressions, then the only option will be to file separate applications.

If there are any colors used in the brand name and/or tagline, is it important to protect the color version or can just the black and white version be filed?
This will depend on the goals of the business, but as a general matter, applying for a mark in black-and-white will provide the broadest scope of protection.

If there is a design associated with the requested trademark, is that also a trademark or a copyright?
It will depend on the particular design, but in general, trademark rights can be established for both words and designs (or for a combination of the two). It might also be possible to obtain copyright protection for the design component if the design contains the requisite creativity and originality.

Many sole proprietors are on a limited budget starting a business and many attorneys charge a pretty penny to file a trademark. Is this something that can be done online with a recognized legal services company or directly through the United States Patent and Trademark Office?
It is possible to file a trademark application directly through the Trademark Office, though one must weigh the potential cost savings against the risk of making mistakes.

What if another individual or company does copy your name and/or tagline, isn't it cost prohibitive to even think about suing?
As a general matter, a trademark infringement lawsuit will likely be very expensive if it proceeds all the way to trial. However, many cases are settled well before that point, and sometimes a cease and desist letter may be sufficient to put an end to the unauthorized use. The decision whether to challenge another party must be made on a case-by-case basis after weighing the potential benefits, risks and costs.

Bottom line: What is the one thing you would tell a sole proprietor starting a business with either a service or a product?
Ask yourself the following questions:
1. What have I done to protect my intellectual property, including trademarks?
2. What have I done not to step onto someone else's intellectual property (including trademarks)?
3. What have I done to monetize my intellectual property?

These are the simplest of questions, but hopefully have given you some idea of what you need to do to protect that brilliant idea of yours. The United States Patent and Trademark Office has instruction and information videos on their website that are surprising helpful when compared to many other government sites. You will find a lot of helpful information there--if you can get beyond the bad production and acting.

--Dayna Steele is the creator of YourDaillySuccessTip.com. Her latest book is 101 Ways to Rock to Rock Your World: Everyday Activities for Success Every Day. Follow her on Twitter @daynasteele.

[Image: Flickr user Thomas Hawk]

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