Wednesday, December 28, 2011

Have a great logo, slogan, design or other unique idea? Time for a Trademark or Copyright

I have a small business client who is incredibly talented and incredibly smart as well. She designs some of the most exquisite jewelry. That is the talent part, of course. Her jewelry is made of the finest sterling silver and often includes precious stones. She has a line of fine jewelry using diamonds that is truly captivating. When she creates a particularly interesting or marketable design, she files a Copyright application with the U.S. Copyright office.

On several occasions, yes, you read that correctly, SEVERAL...retailers have knocked off her treasured designs with cheap, base metals. Not only is this offense reprehensible to her as an artist and small business person, but it dilutes the good will of her business. People actually have been confused and believed that she had "sold out" to some large chain. This is where her copyrights are most effective. You see, filing a Copyright registration puts the public (and any would be thieving mass retailers) on notice that the design, or other creative product, belongs to you alone. An infringer is liable to the Copyright owner for damages and any illegally obtained profits as well as the Copyright owner's attorney’s fees.

Typically, a cease and desist letter combined with a demand for payment of a settlement is sufficient to stop the infringement and after some negotiation, should lead to a payment for the infringement. However, if forced to litigation by a defiant infringer, a lawsuit can be filed and the Court can issue an injunction to stop the infringing acts. Additionally, a Court can impound the illegal works and award damages, court costs and attorneys fees.

No matter what your business or side business, if you are the creative type, you should consider whether you should apply for a Copyright or Trademark registration.

Copyrights relate to creative works such as this text, books, manuscripts, song lyrics, poetry, and works of art such as jewelry designs.

Trademarks relate to brands, logos, slogans, company names, and the like.

Copyright registrations are relatively easy. They involve a one page application and if filed online, run about $35. The filing fee, time and attorneys fees are not cost prohibitive and are certainly worth your effort.

Trademarks are more expensive in that they involve a filing fee of $275 -$325 to the United States Patent and Trademark Office, some legal research and analysis, and they involve a more extensive application. The work involved however is not necessarily cost prohibitive if your slogan, logo or brand is valuable to you and/or has the risk of being unfairly exploited by another. Like Copyrights, trademark infringements carry significant potential liability in the form of disgorged profits, damages and attorney’s fees-all of which are significant deterrents to any would be infringers.

Are you an artist? Do you run or own your own business? Do you have a logo or a brand associated with a product, service or your business? If you have a creative work or idea that is valuable to you, you should consider whether a Copyright or Trademark is an investment you need to make.

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