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The full title of Jamie Lieberman’s session is Get Off My Internet Lawn! How to Fiercely Guard Your Digital Property Line. But since Google doesn’t like long post titles, I couldn’t fit that as my post title.
“I’m a lawyer… Don’t leave!”
Intellectual Property: Copyrights & Trademarks
Intellectual property is one of the things Jamie gets asked at Hashtag Legal. It’s property of the mind.
What is a Trademark?
Name, word, symbol. Trademarks are there to protect consumers from confusion, as they define the source of goods and/or services. If you walk into a McDonald’s, you know what you’re going to get. Trademarks are acquired through use…and you have to continue to use your trademark.
What Can I Trademark?
Not everything can be trademarked. There is a spectrum of distinctiveness. Fanciful names like Xerox are great for trademarks. The word didn’t exist before Xerox came up with it. Then the next step down is something like Apple Computers. Apples are a thing, but Apple Computers is something else. Then there are suggestive names. This is probably the lowest level you’ll get a trademark on. Descriptive names and generic terms like Park & Fly or smartphone cannot be trademarked.
You cannot use the same name for the same type of goods & services as someone else’s trademark. (No one else can open a McDonald’s restaurant. But If Old McDonald has a farm and gives pony rides for income can trademark McDonald’s Pony Rides.
You can only trademark something you are using in commerce.
Where Do I Start?
Research! Go to the US Patent Trademark Office website and use TESS to search the name you want to trademark.
Google it! If someone is using a name or logo or whatever, there are common law rights even if they haven’t registered with the US Patent Office.
Who Should Register?
If you want to stop people from using your brand name nationwide. If you need to prevent confusion with similar sounding businesses, you should register it.
Why Should I Register?
You can sue someone for infringing on your trademark if you are registered, but not if you only have common law trademark. It’s much easier to enforce, and you can receive enhanced penalties in federal court when you successfully defend your mark. There is also a presumption that your trademark is valid.
TM Registration Process
- Research
- Filing (Google the PDF version of the application so you can read it over ahead of time, because the online form times out after 60 minutes.)
- Type of application (proof of use in commerce, or intent to use in commerce) and class
- Monitoring
Copyright – What is it?
Copyright applies to original work. It is fixed in a tangible medium.
There is only federal copyright law, not state law. (States have different trademark laws though.)
You own copyright the moment you create something. You can only copyright actual work, not ideas. Recipes are not copyrightable, but the way
Should I Register for Copyright?
You get the ability to sue in federal court. You have public record of your copyright, and you collect additional damages in court.
Licensing is the most important issue when it comes to copyright. Copyrights are a bundle of sticks, the rights you get when you create something. If you are using someone else’s copyrighted work, you need to get a license to use it in writing. Read your licenses carefully. When you license your work, be clear about what you are licensing. Do not let people use your content.
Can I Use Someone Else’s Stuff?
Ask. Always ask. And get the answer in writing. Get it written in an email and save it.
Beware of Creative Commons licensing, because not everyone has the right to offer that content for licensing. And sometimes copyright owners will change their minds and revoke their licenses.
Work for hire means that the brand/company that hires the content creator owns the content.
Fair use is a defense to copyright infringement. It’s very case-by-case.
What if Someone Steals My Stuff?
Send a cease-and-desist notice. It doesn’t have to be anything official. An email will do. If they don’t comply, you can go over their heads and file a DMCA notice.
That’s me: Christina Gleason. I’m a writer, editor, and disability advocate. I'm a multiply disabled autistic lady doing my best in this world built for abled people. I’m a geek for grammar, fantasy, and casual gaming. I hate vegetables. I cannot reliably speak, so I’ll happily conduct business over email or messaging instead.
