Intellectual Property Law 3: Understanding Trademarks

Copyright is for protecting your artistic creations which applies to stories, music and drawings
Copyright is for protecting your artistic creations which applies to stories, music and drawings. Patents can be split into two separate categories of ‘design’ and ‘utility’ patents and protect the look and the function/operation of your inventions respectively.

So where do trademarks fit into this puzzle? Why might you ever opt to use a trademark over any of these other options? Read on and we’ll cover the basics so you can decide whether or not this is what you need…

What is a Trademark?


Essentially a trademark is copy protection for a single name or image. This isn’t something you can use to protect your stories or inventions then, as these need the more complicated options presented by copyright and by patent.

The kinds of names you might want to protect will usually be ‘trading’ names – hence the term ‘trademark’. For instance then, Windows is already protected by copyright (for the code) and patents (for the look and operation); but the actual word ‘Windows’ still needs to be protected by patent. Otherwise anyone could create a product and sell it as ‘Windows’ to an unwitting audience. If you are setting up a small business, then you will probably want to give your company a ‘trading name’ that you’ll put on your business cards etc. and you’ll probably want to make sure you’re the only person that can trade using that name by protecting it with a trademark. Likewise if you create a product called ‘the duck hat’ then you’ll probably want to prevent other people from selling another product with the same name, which is why you should trademark that name too. Even if you write a story with a main character, you can trademark that character’s name (as long as it’s not ‘Geoff’) in order to prevent people using the character in their own stories. That’s a crucial part of your trade if your company is Disney.

At the same time though, Windows also uses a small logo to represent it sometimes which is a key part of the branding. That too then can be protected by a trademark which is why the term is trademark rather than trade ‘word’. You can also trademark your logo then, but bear in mind that this might be a moot point if your logo incorporates your company name as the main feature.

Limitations of Trademarks

So that’s what a trademark does. Now what does it not do? Well for starters, a trademark doesn’t prevent someone from ever mentioning your company. Microsoft can’t sue me for example for using the word ‘Window’ in this article. It’s only if you are using the term in your marketing and making money from it (actually you can reproduce copyright work too as long as it’s in order to provide feedback).

Something else that makes trademarks unique, is the fact that they can potentially last indefinitely if the owner so chooses. That’s why ‘Mickey Mouse’ will probably never be free for us to use in our commercial creative works, the only caveat being that Disney must keep renewing their trademark on a regular basis and that they have to prove that they are actively using the character, the likeness and the name in order to keep the rights. The term of a federal trademark registration is ten years with a ten-year renewal, but between the fifth and sixth year after the registration, users have to file an ‘affidavit of use’ which involves an additional fee.

Of course you also need to be careful to make sure that no one else is using the trademark you are trying to register as with other forms of intellectual property protection. It’s worth getting a professional to help you research this, as you may otherwise end up wasting a lot of money and having nothing to show for it.

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