Posts filed under ‘Legal’

Protecting your Passion: Trademarks

Creative Commons License

Creative Commons License

On Tuesday we learned that Trademarks are any word, name, symbol, or device used in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others. Service marks are used to distinguish services, rather than products.

So, for purposes of the wedding industry, if you are looking to protect the brandname of your business and you have tangible goods, you would want to use a trademark.  If you have a service business, you would want to use a service mark.

First, let’s break down the symbols (those little doohickeys after a brand name)…

There are typically three symbols you can use to trademark your brand.  (We’ll discuss the process later.)TM Yumminess

TM TM is used to show that you are the owner of that word, name or symbol.  This is something that you can do when you have not legally registered the name with the US Patent and Trademark Office (USPTO).  I use it in my business for our Yumminess brand of DIY stationery:

SM – SM is used similarly to the TM, but for a name that is used for services.mmmpaperlogo

® – This is the symbol that is used when you have registered your trademark with the goverment (USPTO).  You can only use this when you have been approved by the USPTO.  I use it in my business with the mmm… paper brand:

So… is registration required, or can just use the “TM”?

According to the USPTO, trademark is not required.  However, there are some advantages:

  • notice to the public of the registrant’s claim of ownership of the mark
  • a legal presumption of the registrant’s ownership of the mark and the registrant’s exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration
  • the ability to bring an action concerning the mark in federal court (that means you can sue someone who uses your brand name)
  • the use of the U.S registration as a basis to obtain registration in foreign countries
  • the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods

My advice is this… (but, don’t hold me legally liable for your decisions)…

In the first couple years of your business, mark your brand as “TM”.  This is only because the registration process costs $375, a large sum for some new businesses.  You want to make sure you stick with your name and that entrepreneurship is something you want beyond the first two years.  I love a comment posted to yesterday’s post from Charles of Winding Road Studios.  He recommends the “Poor Man’s Copyright” which could easily be applied to the trademark as well:

“If you mail yourself whatever material you would like copyrighted (or trademarked) and keep it sealed in the stamped and postmarked envelope, that can serve just as well as the Library of Congress (or USPTO) papers. You have a verified date from a government agency (USPS) with your creation inside. It works!”

So, what happens when you want to make it legal?

These days, the USPTO makes it easy to apply for a trademark online.  You can input all of your information and upload your images to the site…  No paperwork to fill out.  Here’s how you do it (as summarized from the USPTO site):

  1. Research the USPTO TESS (Trademark Electronic Search System) to ensure that no one else has registered your name.  I HIGHLY recommend doing this even if you are just branding your name with the “TM”.
  2. Draft a description of goods and/or services.
  3. Consider the depiction of your mark:
    You’ll use a “standard character format” if you register words, letters, and numbers without claim to any font style, size, or color. (This is important if you plan on changing your branding in years to come.) You’ll be assigning broad rights to the use of these words as combined. (For example, I own the combination of “mmm… paper” to be used in any design.)
    The stylized or design format, on the other hand, is appropriate if you wish to register a mark with a design element or word(s) or letter(s) having a particular stylized appearance that you wish to protect. (Think of coca-cola.)
  4. File online using the Trademark Electronic Application System (TEAS).  It is actually not very complicated to file.  Be certain to read everything very clearly and answer everything completely.  If there is anything incomplete, the USPTO will have to go back to ask you for clarification and this can lengthen the time it takes (typically a few months).  If you file anything incorrectly it can affect your ownership of the mark.

VOILA!  There you have it!  Come back tomorrow for an awesome industry insider!

June 18, 2009 at 6:00 am Leave a comment

Protecting your Passion: Copyrights

Creative Commons License

Creative Commons License - posted to show illegal photo use

In yesterday’s post, we learned that copyrights are intellectual property rights that protect literary, artistic, and musical works.  According to the United States Copyright Office (USCO) Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  • To reproduce the work in copies or phonorecords (audio recordings including cassette tapes, CDs, and vinyl disks as well as other formats.)
  • To prepare derivative works based upon the work
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
  • To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
  • In the case of sound recordings,* to perform the work publicly by means of a digital audio transmission.

So, what can be copyrighted? Typically, anything that is created by you, the artist.  This will most apply to the photographers, stationery designers, artists, and songwriters within the wedding industry.  This can also apply to your wedding business if you have written a book, magazine, blog articles, website articles, or any other piece of written literature.  The USCO goes on to say that copyrightable works include the following categories:

  • literary works
  • musical works, including any accompanying words
  • dramatic works, including any accompanying music
  • pantomimes and choreographic works
  • pictorial, graphic, and sculptural works
  • motion pictures and other audiovisual works
  • sound recordings
  • architectural works

And, how do you copyright your creation? Once your creation is made and distributed, it is by nature of the distribution protected as your property.  Prior to 1989, “a copyright notice” (that cool little © doohicky) was required to notify people of your ownership.  However, after 1989 this was no longer required.  In essence, the minute I write this blog post I am the owner of it.  You cannot copy it.  If you do, I can seek legal assistance and prosecute you for copying and unlawfully distributing something that I own. This holds true for your creation as well.  The minute you take a photo and post it to your blog – it is yours for no one to use without your permission.

BUT (there’s always a BUT)… While you do not NEED to use “a copyright notice” (that cool little © doohicky), it is still widely used (and I recommend you use it) because it informs the public that you do own it and the date that it was first published.  It’s a nice gentle reminder that, “Hey, I own this article and I first published it in 2009… so don’t use it without my permission.”

The USCO, recommends that your notice for visually perceptible copies should contain all the following three elements:

  1. The symbol © (the letter C in a circle), or the word“Copyright,” or the abbreviation “Copr.”  (If you have a phonorecord, or sound recording, you would use a “P” instead of a “C”.)
  2. The year of first publication of the work. (The yeardate may be omitted where a pictorial, graphic, or sculptural work.)
  3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

Example: © 2008 John Doe

You can do this yourself… no need to register your works with any governmental offices. That being said, there are still some protections you can have by copyrighting your work with the USCO, including greater infringement and legal protection.  If you have a work that is very valuable, you will want to protect it with the USCO (Or, register it through another organization.  For example, if you wrote a script or screenplay, you would register it with the Writers Guild of America.)  You can register through the USCO at this link.

Photographers!  This applies to you! I see amazing works of art by photographers being ripped off everyday.  If you post something anywhere, make sure you watermark it.  Your watermark is your copyright.  Make sure you are being recognized for the work you do.  Liene Stevens, owner of Splendid Communications recently wrote a piece on inspiration boards.  She made a great point on how these gorgeous inspiration boards are being created without permission of photo use.  I recommend you read the post here and think of how you can better protect your art.

Tomorrow, we’ll chat about trademarking… this is where we protect the ever-so-brilliant name you have for your business.

June 17, 2009 at 6:00 am 5 comments

Protecting your Passion: Patents

Creative Commons License

Creative Commons License

A patent is a right that is granted by the government (in our case, the United States Patent and Trademark Office: USPTO) that allows the creator of an invention to be the exclusive manufacturer and seller of that invention for a given period of time (generally 20 years).  If you’ve invented something and want to make sure no one else copies you, this is how to protect yourself.  So, how do you know if you need a patent, copyright or trademark?  And, how do you go about doing it?

The USPTO says:

“Patents, Trademarks, and Copyrights are three types of intellectual property protection. They are different and serve different purposes. Patents protect inventions, and improvements to existing inventions. Trademarks include any word, name, symbol, or device, or any combination, used, or intended to be used in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. Service marks include any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services. Copyrights protect literary, artistic, and musical works.”

So, if you have an invention that you’d like to protect, here’s how to go about doing it:

  1. See if your invention is patentable.
  2. Familiarize yourself with the patent process by checking out the USPTO website.
  3. Perform a patent search to see if your invention has already been patented.  (There is a chance that you may have not been the only person in the world to have the same brilliant idea.)  I LOVE this tutorial that walks you through the process of patent searching.
  4. File one of the following types of applications (these definitions taken from USPTO):
    • Utility Patent Application
      Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or compositions of matters, or any new useful improvement thereof.
    • Design Patent Application
      Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture.
    • Plant Patent Application
      Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
  5. There are fees to pay associated with each different type of patent ranging from $200-900.
  6. After submitting your application, you will typically have communication with the office with questions that they may need answered regarding your application.  It can take a year or several years to get the patent approved, so best be prepared.

The best advice I can give for filing a patent is to hire an attorney once you are ready to file the application.  There are many “apply for a patent” type services online.  Not all of them will help you achieve what you want (and some of them are not legitimate services).  But, a patent attorney is knowledgeable and experienced with all of the difficult paperwork involved with filing a patent application.  You can also search the USPTO website to determine whether the attorney is licensed to practice with their office.

Tomorrow… we’ll discuss copyrights.  So come back (pssst… this means you creators of music, photography, and art!)

June 16, 2009 at 6:00 am 2 comments

Protecting your Passion

Creative Commons License

Creative Commons License

Most people take their passion and run with it.  Something triggers inside of you and voila… you are in business!  You new venture may be “on the side” for a while, or you may have been brave enough to quit your job, sell your house, and one week later you’re renting jetskis in the Bahamas.  Whatever the case, many small business owners are not very methodical about setting up their businesses.  It’s only a couple years later that they realize, “hmmmm, a business plan would be really helpful.”

I’m all for this passion… go with it and run with it.  Some people become very successful in spite of this happenstance.  But,  statistics (from Small Business Administration) show that two-thirds of new employer establishments survive at least two years, 44 percent survive at least four years, and 31 percent survive at least seven years.  And, these same statistics show owners with a plan, have much more likely hood of succeeding.

So, what are some of the *OTHER* things you should be thinking at the onset of your business?

Here’s a thought for you:

You have this great product, how do you protect it from being knocked off?  You have created (written, photographed, composed) something beautiful, how do you protect it from being used illegally?  You have a great brand name, how do you protect it from being used?  And, when is it necessary?

This week we are going to uncover the differences behind patents, copyrights and trademarks.  We’ll get into the nitty-gritty on each one, what you need for your business (and what you don’t need) and define how you can protect your business.

Here’s a primer:

  • Patent – protects an invention
  • Copyright – protects a creation (artwork, photography, writing, etc)
  • Trademark – protects a trade name (that’s your brand name!)

See you tomorrow!

June 15, 2009 at 6:00 am Leave a comment


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