Intellectual property (IP) rights like trademarks, copyrights, and patents are extremely valuable intangible assets that allow companies and creators to protect their brand names, logos, inventions, artistic works, and other creative outputs. Registering trademarks and copyrights with the United States Patent and Trademark Office (USPTO) and United States Copyright Office confers several critical legal benefits and protections. This comprehensive guide will walk you through the step-by-step process of how to properly register a trademark and copyright in the United States. We’ll cover what can be protected, reasons for registering, details on the application process, tips for approval, and more.
What is a Trademark?
A trademark is any word, phrase, symbol, design, or a combination of these elements that identifies the source of goods or services. Trademarks legally protect brand names, logos, slogans, package designs, and other identifiers or features that distinguish a company’s products and services from competitors.
Some famous examples include the Nike “Swoosh” logo, McDonald’s golden arches, Apple’s apple shape logo, and Coca-Cola’s script font. The main benefits of securing a federal trademark registration include nationwide protection, the exclusive right to use the mark and sue for infringement, and the ability to dissuade infringement by using the ® registration symbol.
An interesting fact about trademarks is that colors can also be trademarked if they acquire distinctiveness, like Tiffany & Co.’s robin egg blue. Sounds can also be protected, such as NBC’s three chimes or MGM’s roaring lion intro. Even scents fall under trademark law, like the floral fragrance of Plumeria flowers that Hawaiian Tropic trademarked for suntan oil.
What Can Be Trademarked?
Virtually anything used in commerce to identify the source of goods and services can be trademarked. This includes words, phrases, symbols, slogans, colors, sounds, motions, product packaging designs, and more. For example, devising a unique color for pill capsules could be registrable. The key criteria are that the mark is distinctive enough to identify specific goods or services from a single source, and that it is prominently used in commerce.
Fictional brands or products featured in movies, television, and books can also be trademarked to protect licensing and merchandising. For example, Lucasfilm registered trademarks for Star Wars terms like Jedi, lightsaber, and The Force. Toy companies license these to make official merchandise. Published authors can also trademark book series titles, character names, and fictional businesses described in their writing.
Why Register a Trademark?
There are several compelling benefits and strategic reasons to federally register your trademark with the USPTO:
- Provides legal presumption of nationwide ownership and exclusive rights to the mark.
- Serves as public notice that alerts others your mark is in use and protected.
- Deters infringement through listing in the USPTO searchable databases.
- Grants the right to sue in federal court for infringement and recover damages.
- Awarded damages can include infringer’s profits, treble damages, and legal fees.
- Registration marks deter others from adopting similar marks.
- Solidifies and protects brand investment and company assets.
- Provides registration benefits and priority rights in foreign countries.
For all these reasons, federal trademark registration provides invaluable exclusive rights and protections for company brand names, logos, slogans, and other marks that identify source goods and services.
How to Trademark a Name and Logo
Here are the key steps to follow for how to trademark a brand name, logo, slogan, or other mark to protect your company or product’s brand identity:
- Conduct a comprehensive trademark search – This crucial first step ensures another business does not already have superior rights to the same or very similar mark you want to register. Use the USPTO’s free online TESS database to do an initial investigation. Also strongly consider hiring an experienced trademark lawyer or professional search firm to conduct a more in-depth clearance search, which typically costs $500-$1,000.
- Determine if the mark is inherently distinctive – The mark needs to be distinct enough to stand out from others used for similar goods and services. Fanciful, arbitrary, and suggestive marks are considered inherently distinctive, while descriptive marks require submitting evidence and declarations that the mark has acquired distinctiveness and “secondary meaning.”
- Select the appropriate filing basis – Under U.S. trademark law, you can file an application based on either “use in commerce” if already using the mark, or “intent-to-use” if you intend to use the mark in the near future. Use-based is simpler to file but intent-to-use grants some additional time to get the mark in use after applying.
- Prepare and file the application – The application requires providing information and specimen evidence showing real use of the mark in commerce. Professional legal assistance from a trademark attorney is strongly recommended to ensure proper classification of your goods/services and navigate other application details. Filing fees start at $225 per class of goods/services.
- Respond appropriately to any USPTO issues – The examining USPTO attorney will review the application and may issue one or more office actions requiring clarifications, disclaimers of elements, narrowing the goods/services description, or other changes deem needed for approval. An experienced trademark lawyer can help craft persuasive responses.
- Pay additional fees and await registration – Once approved, you’ll have to pay further required government fees ($100-500 per class) and the application will undergo a short publication period. Barring any viable oppositions from other parties, your U.S. federal trademark registration will officially issue!
How to Copyright Creative Works
Copyright law protects original creative works such as art, literature, music, films, photographs, software, architectural works, and more. Here are the key steps for how to properly secure copyright protection in the United States:
- Ensure the work is copyright eligible – The work must be independently created (not copied) and exhibit at least a minimal degree of creativity or creative authorship. Mere ideas by themselves cannot be copyrighted – only the tangible expression of those ideas.
- Note the date of creation – Copyright exists from the moment a work is fixed into tangible form. As the author/creator, you automatically gain exclusive rights. Be sure to maintain dated records noting first publication and creation dates.
- Officially register the copyright – While copyright applies automatically, registration establishes stronger legal proof and prerequisites to file infringement lawsuits. Copyrights are registered through the U.S. Copyright Office, either online for $55 or via paper application for $85.
- Submit copies of the work – The application requires submitting identifying portions of the work or complete copies displaying copyright notice (© Year, Name). For unpublished works, just submit identifying materials. Published works require depositing two complete copies.
- Provide other required information – The application includes the work’s title, year of creation/completion, authorship information, publication status, and other details. Applications typically must be completed online.
- Await an issued registration certificate – The typical processing time takes 3-7 months. Once approved, you’ll receive an official registered copyright certificate that serves as prime evidence of your ownership rights.
- Defend the copyright – Federal registration allows you to sue for copyright infringement. Be sure to document any unauthorized distribution or copying. A lawyer can help issue DMCA takedown notices or litigate infringement cases.
- Renew the copyright – U.S. copyright terms last for the author’s life plus 70 years. However, renewal applications every 28 years help maintain the full copyright term.
Registering trademarks and securing copyrights are critical legal steps to protect the intellectual property central to a company’s brand identity, creative works, inventions, and overall business endeavors.
Some key takeaways to remember:
- Federal trademark registration confers exclusive nationwide rights to use brand names, logos, slogans and other marks in commerce. The USPTO database allows filing applications based on either current use or intent to use.
- Strong, distinctive, and non-descriptive marks are much easier to protect and register. So conducting comprehensive preliminary searches is essential to avoid conflicts.
- Copyright exists automatically at time of creation but registering with the U.S. Copyright Office establishes stronger legal proof of ownership. This application process covers creative works like writing, visual arts, films, software, etc.
- Official registration enables the owner to file infringement lawsuits in federal court and claim statutory damages. Copyrights also must be renewed over time to maintain long-term protection.
- Consulting an intellectual property attorney ensures you take all the right strategic steps to secure ironclad trademark and copyright registrations. Their expertise significantly improves your odds of approval.
Following all the proper legal procedures and requirements allows both companies and individual creators to establish enforceable intellectual property rights and protect their valuable brand assets and creative works. With the powerful protections registration confers, brands can confidently market products, artists can publish or perform their works, and inventors and businesses can continue expanding their ventures.
International copyright protection
There is no uniform international copyright law that will automatically protect your copyright throughout the world. However, your copyright will be protected in most of the countries in the world because U.S. has treaties and conventions with most, yet not all, of the countries in the world to honor each other’s citizens copyrights. For a complete and current list of such countries, see U.S. Copyright Office Circular 38a, International Copyright Relations of the United States.
While the processes involved may seem complex, registering trademarks and copyrights with the USPTO and Copyright Office is extremely worthwhile for companies, authors, and creators seeking to protect their branding, creative outputs, and overall business interests. This guide provided an in-depth overview of core steps to secure federal registrations. Be sure to conduct thorough preliminary searches, file complete and accurate applications, respond properly to any government office actions, and renew registrations on time. Consulting an experienced intellectual property attorney can provide invaluable guidance for navigating the legal landscape and smoothly obtaining registrations. With strong registered IP rights secured, persons and companies can confidently market their brands and creations and succeed in competitive industries.
What are the benefits of trademark registration vs common law rights?
There are significant advantages to federally registering your trademark compared to just relying on common law rights. Unlike common law, federal registration provides protection across the entire United States even if you only use the mark in a limited geographic area. It serves as nationwide constructive notice to others that you have exclusive rights to the mark.
Registration also grants the right to sue for infringement in federal court, and the ability to potentially recover infringer’s profits, statutory damages up to $2 million per mark infringed, treble damages if willful infringement is proven, and legal costs and attorney’s fees. Having a registration marks you as the presumptive nationwide owner of the mark, forcing accused infringers to prove otherwise.
Additionally, applying the ® registration symbol puts others on formal notice that your mark is registered and legally protected. This can deter infringement and allow you to reach settlements more easily by displaying the federal backing of your rights upfront.
Does a trademark have to be registered to be protected?
No, it is not strictly necessary to register a trademark with the USPTO in order to gain legal protections. Trademark rights arise automatically when you start using a distinctive mark to indicate the source of goods or services in commerce. These are referred to as common law rights. The key is that trademark rights are based on use, not on registration.
However, federal registration provides far more extensive protections nationwide compared to just relying on common law rights established through use in a local area. The common law provides no legal presumption of national ownership or nationwide priority of use. Plus the extent of legal protection is geographically limited to the physical area of actual use. So while an unregistered mark can potentially gain some common law rights, federal registration is far more comprehensive and powerful.
How long does trademark protection last?
Once a trademark is federally registered, the initial term of protection is 10 years. However, the registration can then be continually renewed every 10 years after that as long as the mark remains actively used in commerce. Renewal essentially extends the rights indefinitely – in effect registration can potentially last forever.
This contrasts with copyright which has fixed limits. Trademarks exist until abandoned. As long as you continue to use the mark and renew the registration in regular 10-year intervals, the protections can essentially last perpetually. If not renewed, the registration expires and the mark loses its protected status. Also, if at any point the mark falls out of active use, the registration can be challenged and cancelled. But the term of protection does not max out after a defined number of years as with other intellectual property like patents or copyrights.
What types of copyrights can be registered?
A very wide range of original creative works are eligible for U.S. copyright registration, including:
- Literary works – books, poems, song lyrics, articles, manuscripts, advertising copy, etc.
- Music – songs, musical compositions, lyrics, sound recordings, albums, etc.
- Illustrations – drawings, paintings, photographs, sculpture, jewelry design, fabric patterns, technical drawings, etc.
- Performing arts – films, dances, plays, screenplays, choreography, videos, etc.
- Computer programs and software – source code, algorithms, apps, databases, operating systems, etc.
- Architecture – architectural plans and drawings, building designs, technical drawings, etc.
- Maps, catalogs, compilations of data, advertisements
Essentially any original work that demonstrates creative expression is eligible. Ideas themselves cannot be copyrighted, only the tangible expression embodied in a work. Works do not have to be published – unpublished works are eligible.
Can I register a copyright for unpublished or anonymous works?
Yes, unpublished works and works where the authorship is unknown can still be submitted for copyright registration. The application simply requires providing as much identifiable information about the work as possible, even if the creator is anonymous or unpublished.
For unpublished anonymous works, indicate “Anonymous” for the author. Provide the year the work was created, the nation of first publication, a description of the work, and any other identifiable details that can help pin down the specific work. Submit identifying material or portions of the work rather than the full work.
This establishes your registration as the “copyright claimant” and allows you to sue for infringement later. Even with minimal details, it provides a public record of the copyright.
How much does it cost to hire a copyright lawyer?
Attorney fees can vary quite a bit depending on experience level, location, and complexity of the issues. Here are some typical cost ranges:
- Less experienced lawyers: $150 – $300 per hour
- Mid-level experience: $250 – $450 per hour
- Highly experienced IP partners at large firms: $500 – $1,000+ per hour
Matters like basic registrations tend to cost on the lower end, while extensive litigation can get into the higher ranges. Large law firms usually bill higher rates but can deploy more resources. Individual creators and small businesses may find smaller boutique IP firms provide better value. Overall costs will scale based on the amount of time a case requires.
It’s a good idea to compare rates and get fee estimates upfront. Consider how responsive and engaged the attorney seems with your needs as well. This will help assess true value for the cost.
Should I register before or after publication?
It’s highly advisable to register your copyrightable work prior to publication to preserve your full legal rights and remedies. Here’s why pre-publication registration matters:
- Registration must happen before infringement occurs in order to seek statutory damages and attorney’s fees in litigation. Published works are more prone to infringement.
- Registration establishes prima facie evidence of the validity of the copyright and facts stated in the certificate.
- If registered within 5 years of publication, you can qualify for “premier status” allowing enhanced remedies.
- Litigation costs tend to be lower the sooner you can resolve infringement after it happens.
- Registering before publication allows you to firmly establish the registration date as the effective date of protection. This can deter claims you published without permission
So while you technically can register at any time, registering before making works public preserves your ability to fully enforce rights and seek complete remedies in court if needed.
Can I trademark a business name?
Yes, business names and trademarks often overlap. If your business name is distinctive and not merely descriptive, it can potentially be federally registered as a trademark. This protects the business name from competitors using it. However, even descriptive business names gain common law rights through continuous use in commerce.
How do I prove I own a trademark?
Federal trademark registration provides legal proof of national ownership. Beyond that, you can show evidence of continuous prior use in commerce. Documents like advertising materials, product packaging, invoices, social media, website archives etc. help document ownership through longstanding public use.
Can I trademark a product name?
Yes, product names and brand names can absolutely be trademarked. In fact, trademarking your proprietary eponymous product name provides protection against other companies naming their product identically. Famous examples include Kleenex facial tissue, Band-Aid adhesive bandages, and Thermos insulated containers.
What types of copyrights last the longest?
The standard copyright term is life of the author plus 70 years. But corporate works made for hire, anonymous & pseudonymous works have a copyright term of 95 years from publication or 120 years from creation, whichever expires first. So these types last the longest.
Does a registration number prove my work is copyrighted?
No, a registration number alone does not conclusively prove copyright ownership. It simply indicates that a copyright registration application was submitted, but not necessarily approved. The registration certificate itself serves as the proof of an approved copyright. A number alone is not sufficient.
Can I copyright an idea?
No, you cannot copyright a mere idea itself – only the expression of the idea can be protected. For example, you could copyright a screenplay exploring an idea, but not the general idea itself. Copyright protects tangible creative work, not intangible ideas.
Here are some more in-depth explanations for additional trademark and copyright questions:
Can I trademark a book title?
Book titles themselves generally cannot be protected under trademark law, because they are considered “merely descriptive” rather than acting as a source identifier. However, in some cases a book series title or imprint name could potentially be registered for trademarks, such as “Nancy Drew” mystery books. Elements of a book title may also be protected if highly distinctive.
Some factors that improve the trademark eligibility of a book title include:
- Using a uniquely created/invented word or coined phrase. For example, the “Harry Potter” series title.
- The title has absolutely no description of the underlying book/content. For instance, “The Alchemist”.
- The title is widely recognized as synonymous with a single source series. Like “A Game of Thrones” tying to George R.R. Martin.
- Only a defined series title is used, not individual book titles. For example “Berenstain Bears” series title versus a single book.
So while individual book titles themselves have limited protection, series titles, imprints, and very distinctive titles have some potential for trademark registration. But the content itself is covered by copyright.
Can recipes be copyrighted?
Recipes themselves cannot be copyrighted, because mere instructions and ingredients lists are a procedure rather than creative expression. However, creative literary expression that accompanies a recipe can be protected, such as:
- Original commentary introducing the history or background of a recipe.
- Any artistic literary embellishments creatively depicting the recipe/dish.
- Fictional stories woven throughout the recipe content.
- Artistic food photographs or illustrations incorporated.
- Original literary expressions describing flavors, textures, serving suggestions etc.
- Creative naming of the recipe itself if highly distinctive.
So while the functional recipe procedure itself is not copyrightable, any original expressive authorship added creatively alongside the recipe can qualify for copyright protection. The creative commentary is eligible, not the cooking procedure.
How much does a trademark search cost?
A basic initial trademark search in the USPTO’s free TESS online database can be done yourself for free. However, for a comprehensive professional trademark search, done properly, expect costs between $500-$1,000+.
Several factors impact the cost of a professional search:
- Number of trademark classes and goods/services being searched – more classes means higher fees.
- Different search databases used – at minimum USPTO, state registers, and Google. But additional paid databases provide more comprehensive results.
- Whether the search includes design mark image databases, not just word marks. Graphic logos require visual searches.
- If international trademark databases are included, which increases costs but reduces risks.
- The experience level of the searching professional – veteran IP paralegals and attorneys charge more.
- How detailed the search report is – merely listing findings or doing an analysis.
So $500-$1,000 covers a detailed domestic word mark search from an experienced professional. Add more classes, images, international scope, databases, and attorneys, and the fees for an exhaustive search grow significantly.
What does copyright protect?
Copyright law protects the original creative expression embodied in a work, such as:
- The unique selection, coordination, and arrangement of words, numbers, colors, shapes, graphics, animations, sounds, etc. that make up the work.
- The overall structure, storylines, characterizations, melody lines, rhythm, and lyrics used.
- Artistic styling, creative insights, wording, and authorial analysis or commentary conveyed.
- The fixed tangible medium itself that the expression is embodied in – the particular words on paper, lines of code written, notes played, colors painted, movements choreographed, etc.
However, copyright does not protect abstract ideas, systems, processes, factual information, common cultural expressions, or anything not contributed by the author. The essence is protecting creative intellectual invention, not concepts or discoveries themselves.
What are the penalties for copyright infringement?
Depending on severity, copyright infringement can lead to a variety of civil and criminal penalties:
- Injunctive relief halting ongoing unlicensed use.
- Monetary damages awarded that are the greater of the actual damages plus infringer’s profits, or statutory damages ranging from $750 up to $30,000 per work infringed.
- Up to $150,000 statutory damages per work if willful infringement is proven.
- Plaintiff’s full legal costs and attorney’s fees.
- All infringing copies and equipment used may be judicially seized and destroyed.
- Courts can issue writs demanding infringing materials removed or barred from entering the U.S.
- The court may refuse to allow the infringer to claim deductions for tax purposes.
- Criminal charges for commercial piracy leading to fines and imprisonment.
So the penalties both civilly and criminally can be quite severe. Statutory damages alone can add up to enormous sums if multiple works are infringed.
Can I trademark a song title?
Generally no, song titles themselves cannot be protected under trademark law because they are considered “merely descriptive” rather than serving as a source identifier. However, an album title, band name, or music group name could potentially be registered as trademarks. The lyrics and music composition itself can be protected by copyright, while trademarks cover branding source identifiers.
Some exceptions where a song title could gain trademark status include:
- If the title acquires “secondary meaning” associated with the band. For example, “Yellow Submarine” is intricately tied to The Beatles.
- If the song title is distinctive and not just describing the song. For instance, “Purple Haze” has no descriptive qualities.
- Portions of a song title may be protectable, like use of an invented word. For example, “Bad Blood” with the distinct word “Bad Blood”.
So while song titles themselves have limited trademark potential, the overall branding and music group names can certainly be protected. It depends on the distinctiveness and usage in commerce.
How much does a copyright registration cost?
The basic fee to register a copyright online is $55 for one work by one author. The fee gradually increases based on additional factors:
- Each additional author adds $55 (so 2 authors is $110 total fee)
- Paper applications are $85
- Physical deposits instead of digital copies incur additional fees
- Expedited special handling is $800
- Registering multiple works together lowers the per-work fee
- Claims for pre-existing works published within the last 5 years have additional fees
- Registration certificates cost extra $35 each
So at minimum, expect $55 for a basic electronic copyright registration. But with multiple authors, physical deposits, expedited handling, etc. the costs increase. Standard registrations tend to fall in the $55 to $200 range, rarely exceeding $500 total.
Can I use a trademark symbol without registering?
No, you cannot legally use the ® registration symbol next to a trademark or claim registered trademark rights unless the mark is actively registered with the USPTO. Using ® when you do not actually have a federal trademark registration constitutes fraud and false advertising under U.S. law. This can make your trademark rights invalid and subject you to liability.
However, it is permissible to use TM or SM symbols to simply assert common law trademark rights for marks used in commerce, without a registration. But only registered marks can properly use the ® symbol and claim registered status. Doing otherwise violates federal trademark law.