Business Tips: Trademarks & Copyrights

HAPPY NEW YEAR! (better late than never. Right?) Can you believe we are already at the end of the second week of January 2011? I like to view the start of a new year as a new opportunity to look at my business with fresh eyes.  As many of you may have noticed, I started the New Year with the opening of my new brand and my new Etsy shop Herban | Luxe.  I’ve spent some time deciding on a name of my new shop, working on a new logo and formulating new makeup products and more.

This brings up a whole slew of topics worthy of publication here on our EcoEtsy Friday Business Tips.  Let’s talk about “Intellectual Property” or as we know them in plain terms as Copyrights & Trademarks.

According to the United States Copyright Office,

Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
•    To reproduce the work in copies or phonorecords;
•    To prepare derivative works based upon the work;
•    To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
•    To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio­ visual works;
•    To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio­ visual work; and
•    In the case of sound recordings,* to perform the work publicly by means of a digital audio transmission.
In addition, certain authors of works of visual art have the rights of attribu­ tion and integrity as described in section 106A of the 1976 Copyright Act.

Woo, that’s a mouthful! Now in plain English, please. A copyright provides protection for your creation. It protects pictures and text on your website and your Etsy shop (even if you don’t have a copyright notice on your site).  Copyright protection starts the moment your work goes live on paper, a website, or other permanent form. You don’t necessarily need to register your copyright. HOWEVER, by registering your copyright you get additional benefits. If you ever have to sue anyone for copyright infringement your registered copyright could entitle you to damages and attorney’s fees.

Copyright DOES NOT protect your ideas. There is also something called “Fair Use”, which basically allows others to copy all of a portion of your work for criticism, comment, news reporting, teaching, scholarship, and research.

You can read more about copyrights and access an eApplication for copyright registration at http://www.copyright.gov/

On to the next topic, Trademarks. Our very own EcoEtsy team member and former Intellectual Property Attorney, Linda Stein of Zosimos Botanical has been kind enough to share her knowledge of trademarks with us for this post. Linda was a Featured EcoEtsy Team Member on December 22, 2010, we learned about her shop, now we pick her brain.

Linda shares;

Another aspect of Intellectual Property is called Trademarks.  A trademark is a source identifier that distinguishes it from its competitors.  In plain English, it’s typically the name or logo, used by a product or service provider in connection with their goods or services.

Most of us Etsyans sell tangible products (like handbags, skin care products, makeup, and other handmade products); services refers to doing something for someone else, like designing a logo.

One way to convey your brand is to have a “strong” trademark.  The strength of a trademark is gauged by its uniqueness for the goods/services with which it is used in commerce.  There are different levels of strength: arbitrary, suggestive and descriptive.  The type of trademark that gets the most protection and builds goodwill fastest is an arbitrary mark.

Let’s look at some examples:

Arbitrary: EXXON is a strong trademark because it is a completely made-up word.  There is only one company that has ever used that trademark to represent their brand.

Suggestive: DOWNY for fabric softener falls into this category because it connotes the softness of down feathers.  The suggestion is that by using this fabric softener your wash will be softer.

Descriptive: Less protection is afforded a descriptive mark such as COMPUTER LAND for a store selling computers.Many people choose descriptive marks with the thought that consumers will not need any explanation about the kind of business it is.  However, a descriptive mark can typically be protected after becoming distinctive through years of use.

No trademark protection is extended to generic terms, such as BOAT for a boat, since everyone has to be able to describe a boat business with the word boat if they want to.  When a trademark is protected it means that the trademark owner can prevent others from using it for the same or confusingly similar goods/services (what is confusingly similar is an entirely different article, and many conflicts arise from it).

Trademark protection is obtained through use, not registration. Once a trademark is adopted, the “tm” symbol can be used with it, to show other people that trademark protection is being claimed.  You want to use the “tm” symbol to put people on notice.

Since we all sell on the Internet, consideration should be given to filing with the Patent and Trademark Office for a trademark Registration Certificate.  How long it takes to get a registration depends on the strength of the trademark (that’s why I had to tell you about that beforehand).

One big benefit to getting a trademark registration is that it grants presumptive knowledge across the entire USA.  Part of the registration process is publication for third parties to object to the application.  So if no one objects, the Patent and Trademark Office (“PTO” for short) assumes that everyone in the country is okay with it.  Kind of like the “speak now or forever hold your peace” part of a marriage ceremony. Basically, you had your chance and cannot plead ignorance later.  There is an application fee of several hundred dollars, so it’s a good idea to do a quick online search when choosing a trademark to see if it is already being used by someone else for something similar to what you are planning.  Otherwise, you pay the nonrefundable fee and get immediately rejected by the PTO.

Once a mark is registered the PTO issues a nifty certificate.  At that point, instead of using the “tm” symbol, the registration symbol (an “R” in a circle ® ) can be affixed next to your mark.  If you find out someone is using your mark it is called “infringement.”

How do you stop an infringer?  The first step to take is to write a “cease and desist” letter.  Write to the person, tell them what mark you own and attach a copy of your Registration Certificate.  Give them a month to write back.  Send it certified mail, return receipt requested so you have proof that they got it and the signature of who accepted the letter.  If they have inventory, it’s nice to offer a three to six month phase-out period within which they can sell off their inventory and adopt a new trademark.

What else can you do with a Trademark Registration?  Besides preventing other people from using your mark, you can license it’s use and collect licensing fees.  Ever see a shirt that is the “officially licensed jersey of the NFL”?  Then you know what I am talking about.

So, that’s it! You’ve been served some bits of knowledge. Now go forth and protect your creations. We’d love to read your comments. Have you trademarked or officially registered a copyright? What was your experience?  Have questions? Post them as comments as well, we’ll answer those too.

About Myra @ HerbanLuxe

Myra is an Etsian with an MBA. The art of business and technology are her two obsessions. She has been writing EcoEtsy Business Tips since 2010. Myra grew up in Puerto Rico with grandparents who were a head of their time and didn't know it - living what we would call today, "a simple green life." Her love of learning and teaching are the key drivers in almost everything she does.