An established trademark protects the trademark owner from others who may try to hitch a ride or damage on the goodwill that is associated with that trademark. For example, an entrepreneur may put out a confusingly similar trademark on related goods or services. Secondarily, an established trademark protects consumers from being misled into buying a product or service from an unexpected provider. In other words, trademarks allow consumers to have confidence that the products or services they purchase come from a particular provider. For example, people have developed goodwill in Apple’s design and the quality of its products, so if another company were to begin selling computers with a trademark that was confusingly similar to Apple, it’d damage consumers who were led to believe they were buying a genuine Apple product, when in fact they were buying a potentially inferior product from a different party.
What Is The Difference Between A Trademark And A Copyright?
A trademark is a vehicle for capturing and leveraging the consumer goodwill that is associated with a brand, service, or provider thereof, whereas a copyright is a vehicle that protects creativity that has been fixed in a tangible medium of expression. A creative idea cannot be copyrighted, but once that creative idea has been put into some tangible and reproduceable form, it can be protected by copyright. Copyright does not extend to things that are functional, but it does protect creativity, which can range from something like an abstract painting, to something like an historical account of Abraham Lincoln’s life. The latter of the two examples, while not as creative as the first and while dependent upon subject matter which is not protectible by copyright, can still benefit from copyright protection covering the specific way the author chooses to arrange to present the information.
What Is The Difference Between A Trademark And A Patent?
As we discussed above, trademarks embody hard-earned consumer goodwill and are used to protect consumers and to protect you from competitors engaging in actions that benefit off or damage that goodwill.
Patents protect what is inherently functional. Specifically, they protect embodiments of functionality that are both novel (which means not ever done before) and non-obvious to someone who has skill in the related art. It cannot be just a somewhat easily recognizable derivation or change from something that is already known; there has to be some level of creative abstraction to design beyond what is known but that abstraction is based around functionality.
For example, if someone comes out with a new widget that operates in a different manner than other widgets, and if they want to commercialize or monetize that widget, then they would patent the widget and potentially the method by which that widget was made, or operates. You could copyright the creative advertisements, commercials, and product photographs for that widget. Finally, if they were to sell that widget under a brand name, use a tag line, with an associated symbol or icon; basically anything used to identify it as coming from them rather than another source, then that would be what you would trademark.
Once We’ve Established A Name That We Want To Use For Our Trademark, What Are The Next Steps?
Once a desired trademark has been established, the first step is to conduct a clearance search to determine whether it is “confusingly similar” to another trademark. If the clearance search comes back relatively clean, meaning that there is not a similar trademark in association with a similar business or service, then the individual should consider themselves relatively safe to begin using the trademark in commerce. Then, simply by using the mark in association with the sale of goods or services in interstate commerce, the individual automatically begins to generate common law rights in their trademarks.
I generally suggest registering trademarks at a federal rather than a state level, if at all possible. Federal registration, when compared to State registration, has minimal additional requirements while providing significant additional benefits.. Registration can be done subsequent to actual use or prospectively, and there are couple of reasons why someone might want to do one or the other. For example, if someone files before they actually use the mark, then they benefit from the ability to go through the administrative clearance of that mark and the application before investing in all the branding of the goods or the development of that brand, but will incur additional filing costs prior to registration.
During that process, a clearance search will be performed by the United States Trademark Office. It’s a little bit more limited than a clearance search that an attorney would likely perform, because they principally check it against their own registers, allowing for the administrative clearing of that mark against any potentially conflicting other marks that are federal registered. However, a trademark application based on the intent to use a mark will not actually proceed to registration until it can be shown that the trademark was being used in commerce. In other words, a person will never be granted full trademark rights—whether =federal or common law —until they have used the trademark in commerce.
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