Protecting Your Brand Before It Becomes Valuable
In the chaos of starting a business, one of the most fundamental aspects of a business is often forgotten. Most small business owners know their intellectual property (IP) matters. Yet, many still fail to act on it until something goes wrong. If you are a small business owner, expect to learn what type of IP to protect, how to identify your business’s IP, and how to protect it.
There are four buckets of intellectual property that business owners should be aware of:
- Trademarks
- Copyrights
- Patents
- Trade Secrets
However, almost every business has two specific buckets of IP that are often overlooked or lost through simple inaction. Therefore, the focus of the article will be on these two buckets: Trademarks and Copyrights
Your trademarks are your brand identifiers. Think name(s), logos, slogans, etc. To identify your business’s potential trademarks, think about anything you’ve created that would make someone think of your brand when they see it.
Copyrights are original creative works. That can include written content, videos, design files, or even software code. Common examples many businesses overlook are their marketing and sales materials, operational materials, digital content, logos, graphics, promotional media, even jingles or podcasts.
- Trademarks
Regardless of whether you are just starting your business or further down the line, the first step to trademark protection is identifying your business’s potential trademarks. As stated above, trademarks are source-identifiers for your business, not the creative works. What is actually protected is the mental connection consumers make when they see your trademark. Two different trademarks, held by two different entities, even if they appear the same, may both still be protected, so long as they are not confusingly similar in context.
This can be confusing at first. To help you through the process of figuring out what may be a trademark for your business, get out a pen and paper. Start writing down what your business owns or has created, that would make someone think of your business when they see it. The scope of a trademark includes the goods, services, and geography of the business, so err on the side of inclusion when listing potential marks; be narrow when identifying goods and services on an application. Additionally, the United States Patent and Trademark Office offers a free tool to help guide you through this process.
A common misconception is that forming an LLC and filing a fictitious name secures trademark rights in the business name. It does not. Those filings tell the state who you are; they say nothing about trademark rights. Rights come from actually using the mark in commerce, and federal registration is what provides constructive notice and a presumption of those rights nationwide.
Once you have a list, the next step is a trademark search to see whether anyone is already using something similar. If the results of the search are clean, you can go forward with filing an application. An attorney at the USPTO will review and scrutinize your application, which may require a response from you. Most applications take about a year to jump through the hurdles and be fully registered.
- Copyrights
Thankfully, the process regarding copyrights is more straightforward. As soon as your creative work is fixed in a tangible medium, it is protected by copyright law. However, the type of protection worth having does not automatically attach.
Registration with the US Copyright Office provides the strongest protection against infringement of your copyright. Without first obtaining a registration (or a refusal of registration) from them, you cannot file an infringement action for a U.S. work in federal court. . Additionally, waiting until after someone has already copied you comes at a significant cost, losing your business access to statutory damages and attorney’s fees in that case.
Registration per work is $45 for a single application and $65 for a standard application. The practical takeaway: register anything central to your business within three months of first publishing it. This preserves your eligibility for statutory damages and attorney’s fees even if infringement began before registration.
- Do You Actually Own It?
Many businesses do not own the IP they believe is rightfully theirs. Work an employee creates within the scope of their employment generally belongs to the business under the work-made-for-hire doctrine. However, when businesses hire contractors, their work does not automatically belong to the business. As businesses start, it is common practice to hire a freelance designer, photographer, or even website developer. Even stating that the job is “work for hire” is not enough to confirm you own the IP, because for contractors, the work-made-for-hire doctrine only applies to certain categories of works under a written agreement. To ensure that work from contractors belongs to the business, business owners should be deliberate about receiving written assignment from the contractors. This language should state that the contractor presently assigns all rights in the deliverables to the business.
The process for protecting your business’s trademarks and copyrights can be intimidating, but it doesn’t have to be. There are simple steps you can take at any point in the process to ensure your business’s brand and IP are well protected.
At Maspons Advisory Services, we can help every step along the way. If, for any reason, we can’t help, we would love to connect you with an experienced IP professional to guide you through the process.