IN THIS CHAPTER

Understanding trademarks and the law

Establishing copyrights and your right to be covered

Registering your work

Hiring lawyers instead

Your business is important to you, and protecting your hard work and assets is probably high on your list of concerns. From your company logo to your business documentation to your website, making certain your intellectual property (IP) is protected from improper use, plagiarism, and defamation is a never-ending process.

In this chapter, we show you how to protect your investment by registering for trademarks and filing your copyright.

Understanding Why Trademarks and Copyrights Matter

Creating a distinctive name, symbol, or phrase for use in your business can involve a lot of work. After all, branding companies are paid tens (or hundreds) of thousands of dollars to come up with the right names for new products or services. The same hard work and amount of time invested applies to a written work of art, a clever body of text used on your website, or an original piece of artwork: If you go to the trouble of developing unique content, it’s probably worth protecting it as your own.

To understand how to protect yourself, you have to enter the Land of Legalization. Start by wrapping your brain cells around some extremely important words, as defined by the U.S. government:

• Copyright: A form of intellectual property law that protects original works of authorship, including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. The Library of Congress registers copyrights, which last for the life of the author plus 70 years.
• Patent: A property right granted by the government of the United States to an inventor that excludes others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States, in exchange for public disclosure of the invention when the patent is granted.
• Trademark: Protects words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and that indicate the source of the goods. Trademarks can be renewed forever, or as long as they’re being used in commerce.

Obtaining one of these legal stamps to claim something as your own is a fairly painless process. Taking this precaution can eventually translate into dollars gained. Not having a product or logo protected makes it easier for someone to copy or steal your idea. That’s money out of your pocket. Although having a trademark or copyright might not prevent others from infringing on your work, it certainly makes it easier to go after them in court if they do.

Although the rules for these protective marks are the same whether you’re conducting business online or off, the Internet has increased the stakes in some instances. Having your information readily accessible by millions of people around the globe makes it much easier for others to “borrow” from your hard work. That’s all the more reason to make the effort to officially protect your information.

Making Your (Trade)Mark

Do you have to register your work to be protected? No. You might be surprised by this answer, but a federal trademark isn’t a necessity. Suppose that you design a symbol to be used as the logo for your online business. By placing that logo on your site, and using it there and on any other business materials, you have established rights to it. So, why bother to officially register it? Obtaining federal registration acts as a notice to the public that you own the mark. It can also assist you if you decide to take action in a federal court to stop someone else from using your work. Also, if you want to register your logo outside the United States, the official registration provides the basis for you to do so.

Even if you choose not to formally register your work, you can use the trademark symbol anyway. After you establish that brilliant tagline or artistic logo, go ahead and place the trademark symbol (™) near your work. However, you cannot use the symbol showing that the work is officially registered until you apply for registration and receive final notification that your mark is registered. At that time, you can use the registered symbol (®).

Having a registered trademark doesn’t prevent others from infringing on its use. After your work is registered, it’s up to you to enforce it.

Protecting Your Investment with Copyrights

As with trademarks, you don’t have to file for copyright protection to claim your written work as your own. Copyright protection is in place at the time you create your work. However, if you choose to file a lawsuit against someone for using your information, the U.S. Copyright Office advises that you need the formal certificate of registration as proof of ownership.

The good news is that copyrighting your information yourself isn’t expensive. Online filing fees for a basic registration at the time of this writing are $35 to $55 per work. The fees can escalate depending on the type of work and the amount being registered. You may also require a copyright search for a fee of $200 per hour. The purpose of a copyright search is to identify if anyone else already owns the right to the content. However, copyright searches are sometimes tricky because not all files have been digitized and made available online (a current digitization project is underway, but not yet complete). This means that searches of copyrights prior to 1978, approximately 45 million cards of information, must be sorted through the old-fashioned way — offline, in the U.S. copyright office in Washington D.C. You can learn more about the copyright search process online at www.copyright.gov/circs/circ23.pdf.

If you choose to register, certain rules pertain specifically to websites and other material distributed online (such as documents you offer for download). For instance, you can copyright any original information you include on your site.

Here are some other variables:

• You can protect computer programs you have written.
• You can protect entire databases.
• You cannot copyright your domain name for your site (such as www.mysiteisgreat.com).
• If you decide to send out an electronic newsletter to your customers each week, it’s protected under copyright laws, as long as the information is original.

The rules become more complicated when you discuss the period over which a work is protected or the amount of work that can be copyrighted. For instance, the original words on your website pages are protected. However, if you make updates to any of your pages and change that information, it isn’t protected. In other words, you aren’t given an unlimited copyright to your site’s content. If you change the information (which you should do to keep your site fresh and current), you must file another application and pay another filing fee.

Here’s an exception to this rule: An online computer program may be treated separately. Online work that’s continuously updated can be classified as an automated database, which can have a single registration that covers updates over a 3-month period (in the same calendar year). Or if you have material, such as an e-newsletter, that’s updated daily or weekly, you might qualify for a group registration (or a single registration that covers multiple issues).

For more flexibility when allowing others to use and share your online content, such as blogs, website copy, and images, consider a Creative Commons license. Creative Commons is a nonprofit organization that provides different types of licenses for digital content that extend the way your copyrighted content is used while remaining within the legal boundaries of copyright law. You can, for example, grant users the right to share, edit, remix, or build upon your content based on certain conditions. You choose to extend licenses based on the types of attribution and whether it is for commercial or noncommercial use. A Creative Commons license works alongside a legal copyright and is not a replacement or an alternative to copyrighting your work. Copyright laws can be inflexible, but a Creative Commons license allows widespread digital sharing while enabling you to retain ownership of your work. You can learn more at www.creativecommons.org.

For complete details about copyrighting your online work, check out the official site for the U.S. Copyright Office and its section about electronic content, “Copyright Information for Online Works,” at www.copyright.gov/circs/circ66.pdf. As with all advice in this book, when it comes to legalities, we highly advise you to consult an attorney if you have any questions or concerns about any actions you need to take.

Establishing Registration Yourself

As we point out in the preceding section, establishing your work as your own is as simple as creating it and using it. When you’re ready to take the extra step to obtain proof of ownership, you can easily file for a trademark or copyright yourself.

Retaining Professional Assistance

Hiring an attorney who specializes in trademarks, patents, or copyrights can be a good idea if your situation is complex or you’re not comfortable handling the applications on your own. If you’re pursuing registration in foreign countries, hiring an attorney who’s familiar with international laws is invaluable. Because U.S. copyright and trademark laws are recognized in some, but not all, countries, using an attorney can ensure that you’re fully protected.

You can expect to pay big bucks for the expertise of a professional. An experienced attorney might charge anywhere from $125 to $250 (or more) per hour for his or her service. This money is in addition to any filing or application fees you might have to pay. For this fee, you can expect a trademark attorney to conduct a thorough search of existing and pending marks that might conflict with yours. The attorney should also complete all forms on your behalf and act as the primary point of contact with the U.S. Patent and Trademark Office or the U.S. Copyright Office.

To protect your investment, follow these tips when you’re hiring a professional:

• Look for an attorney who specializes in intellectual property or trademarks, copyrights, and patents.
• Get referrals from others you know who have used attorneys to register their businesses.
• Clarify which portion of the work is conducted by the attorney and which part is handled by legal aides (or junior partners).
• Discuss the attorney’s rate and whether you’re billed up front.
• Ask for a written statement or estimate of how much you can expect the process to cost.
• Confirm that the attorney is licensed.

You can search for an attorney in your area by using the referral guides on these websites:

• American Bar Association (ABA): Visit www.abanet.org to locate attorneys in your area who can help you with your specific legal needs.
• FindLaw: FindLaw, at www.findlaw.com, can also help you locate local attorneys who specialize in various legal subjects, including trademark policies.