Trademarks, copyright, usage rights oh my!
It is so confusing with so many legal working parts swirling around. It is important to understand how each works. For more copyright info check out here.
Here’s a small snippet on how trademarks work – and how they can benefit your biz – especially if you want to get a photography trademark for your business.
What is a trademark?
In short, it’s a brand name. According to the U.S. Patent and Trade Office, it’s a “word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.”
In order for your brand to qualify as a “trademark,” it must be distinctive.
- If you have a made-up word for your brand like “Kodak” (a brand of cameras and film), it will be considered inherently distinctive.
- If you use words that are not typically associated with the product or service, such as “Pink Ivy” Photography, it would very likely be considered distinctive.
- Be careful if your brand seems purely descriptive. “Best Shots” or “Photojournalism Pros” would probably not be considered distinctive enough.
Should I register a trademark with the government?
It depends! It is not mandatory to register your trademark, so you do not have to.
Just by virtue of using your brand name in commerce, you earn the right to use TM.
Still, registering the mark with the government provides some advantages. Here are just a few highlights:
- Registering gives you a strong legal claim to the mark and a time frame of when you started using the mark in commerce. This means if someone else is using your mark, it could be easier to stop them from using it.
- If you are planning to expand your business nationwide, registering your trademark gives you nationwide priority to the mark. Other companies using the mark in a smaller territory cannot stop you from using the mark in their area as you expand.
- You can use ® instead of TM, indicating to the public you have a registered trademark.
If you are just starting out, you may find it is easier to begin protecting your mark simply by including TM after your brand in your advertising, on your promotional materials, and on your web site. This gives you common law rights to your trademark in the territory you are using it.
But before you do this:
You should try to make sure you are not using a trademark someone else is already using!
To conduct a quick federal search: http://www.uspto.gov/trademarks/basics/searching.jsp. Also, use Google!
If you decide you would like to register your mark, you should seriously consider contacting an attorney who specializes in this area of law. He or she can conduct special searches and streamline the process for you. But, you do not have to be an attorney to file the paperwork with the U.S. Patent and Trade Office. It is possible to do it by yourself here: http://www.uspto.gov/trademarks/process/index.jsp.
How should I use TM (or ®) in my business materials and advertising?
For your company name: The name of your business is not a trademark; it is the legal name of your company. You register the business name, but that is not the same as a trademark. You should not put a TM after the legal name of your business. In contracts, releases, and other business forms and paperwork, just use the name of the company without a TM if you are referring to the company.
- Correct: Kassidy’s Kandids, LLC.
- Correct: Kassidy’s Kandids reserves the right to…
- Incorrect: Kassidy’s Kandids, LLC.TM
- Incorrect: Kassidy’s KandidsTM reserves the right to…
For your photos or artwork: Do not use a TM for your photos. Your photos and your art are your intellectual property, but they are copyrighted, not trademarked. You would use a © instead of a TM. If someone violates copyright here’s your plan of action.
For your brand: Use a TM after your brand name to assert your rights to the trademark. Names, titles, short phrases, and slogans are not copyrightable. You may have protection under the federal trademark laws. Contact the U.S. Patent & Trademark Office, 800-786-9199, for more information.
- For maximum protection, use TM after each time you use your brand name. In any case, you should use a TM after your brand at least once per page where your brand is mentioned.
- Use your trademark as a descriptor, an adjective – not a noun.
- Correct: Kassidy’s KandidsTM portraits are high quality and professional.
- Incorrect: Kassidy’s KandidsTM are excellent, high quality portraits.
- Do not pluralize your trademark or make it possessive.
- If your brand name is the same as your company name, and many times it is, just think to yourself: am I referring to my company as a business entity or referring to a product/service we provide? Remember, a business name will not use TM, but your brand describing products or services will.
- Correct: Kassidy’s Kandids is a full-service photography company.
- Incorrect: Kassidy’s KandidsTM is a full-service photography company.
- This is referring to the business entity, so don’t use a TM here.
- Correct: Kassidy’s KandidsTM platinum packages are for our most discerning customers.
- This is describing the type of goods offered (photo packages), so TM is appropriate.
- Correct: The Kassidy’s KandidsTM experience is one you will cherish forever!
- This is describing the service, so TM is appropriate.
- If you have a logo, put TM next to your logo each time you use it.
At the bottom of the web site, brochure, advertising, etc., make a note something to the effect of: “Kassidy’s Kandids, KassKlicks, KassiKam, and the Kassidy’s Kandids logo are trademarks of Kassidy’s Kandids, LLC. All rights reserved.”
Main Things For You To Remember
- You don’t have to trademark your business name but it may be best to preserve your spot in the commerce community
- Legal registration of your business name through appropriate channels in your state will reserve your business name only for your jurisdiction. See How to Set Up (Or Maintain) A Photography Biz
- If someone moves into your area with the same biz name (and have not legally filed) send them this information! Help to educate!