Copyright and Trademark Myths
I recently did some extensive research into copyright as it pertains to the internet and logo design. The most important tip I learned was that the more original and different the identity is from it''s competition, the easier it is to protect, registering a mark gives it the best protection, and proper research beforehand will help the designer avoid being held responsible should there be any litigation. (Designing brand Identity, Pg. 127) I have learned what the different symbols mean and what qualifies you to use them. I was surprised to learn that you can us TM (Trademark) and SM (service mark) without registering the trademark. Only the (R) requires registration for use.
I thought that the common myths listed in Designing brand Identity where very interesting, so I did some online research to find the answers.
Myth: Once you register a trademark, you own it forever and for everything. (Pg. 127)
The truth is that using the name before the public gives ownership of a trademark, not registering it. A Registered Trademark is protected for 10 years. After 5 years, you can choose to renew it. (NationalTechCenter) Protecting the trademark helps you to enforce any copyright infringement.
Myth: Registering a domain name offers legal protection (Pg. 127)
There are so many issues with this topic. There is an issue of gaining the domain name for an already registered trademark, which can be done. There is an issue of protecting your domain name, which is much more difficult. For example, if the .com is not available but the .net is, there could be legal restrictions to using them. Another important question is; can I protect a domain name by registering it as a trademark?
A mark comprised of a domain name may be registered as a trademark or service mark in the U.S. Patent and Trademark Office. However, just like any other mark, the domain name is registerable only if it functions to identify the particular source of goods or services offered. In other words, it must be distinctive so as to be capable of distinguishing your goods or services from those of others.
Does a domain name registration automatically offer legal protection?
No, a domain name registration does not automatically offer the name legal protection. In principle, domain name registration does not create any right. Protection for the name can only be obtained by having the name registered as a trademark with the Trade Mark Register. Sometimes protection arises on the basis of the Trade Name Act. Prior to domain name registration, it is recommended to conduct a search to find out if a name infringes someone else's rights.
The bottom line here is that just purchasing a domain does not protect your trademark, but registering your trademark, can protect your domain name.
Myth: We can save money if we conduct the research ourselves. (Pg. 127)
You can conduct your own trademark search. The best thing to do is to consult a trademark lawyer and have them check out your trademark. (There are even some that specialize in Internet copyright infringement)
You can do some digging to find out whether another business is already using a name that''s identical or similar to the one you want to use by conducting a name search and you must use different search tactics to hunt for both registered and unregistered trademarks. (Domainsmagazine)
The problem with this is that there are so many trademarks in use and many of them are not registered. There is no one place to look for them.
There are things to keep in mind to help you avoid issues
- Names that identify the source of products or services in the marketplace are trademarks. (NOLO)
- Trademarks that are clever, memorable or suggestive are protected under federal and state law. (NOLO)
- Trademarks that are descriptive and have achieved distinction through sales and advertising can be protected under federal and state law. (NOLO)
- One trademark legally conflicts with another when the use of both trademarks is likely to confuse customers about the products or services, or their source. (NOLO)
- In case of a legal conflict with a later user, the first commercial user of a trademark owns it. (NOLO)
- If a legal conflict is found to exist, the later user will probably have to stop using the mark and may even have to pay the trademark owner damages. (NOLO)