March 29, 2018
Originally posted 2018-11-19 11:21:27
By Aurelia Mitchell Durant, Esquire and Sindy Ding-Voorhees, Esquire
Bravo to all the small business owners that have the bravery, vision and drive to create something incredible and novel in the marketplace. Every business starts out from an idea. No matter where you are in the stage of solidifying your business idea or executing your business plan, intellectual property is a substantial part of the plan and you want to timely and correctly protect this valuable asset, especially as you try to get your endeavor off the ground by marketing and advertising your product or service.
What elements of intellectual property do you want to consider? Firstly, you should definitely be concerned about getting your brand name out there to represent your business. You need something unique and memorable that embodies your idea. A brand name with certain designs or logos is what you want to come up with. Uniqueness means that there is no one using a similar brand name or brand logo in the marketplace. This would trigger a likelihood of confusion and potentially dilute the effectiveness of your brand. Trademark registration is critical at the start of your business. The process of trademark protection provides a recourse in the instance of infringement and also it helps to insulate you from accidentally infringing on the brand name of another because you were unaware of their existence. This is vital because the standard for infringement is not exact duplication but the likelihood of brand confusion.
Procedurally, once your small business has a trade name that you intend to use as a source to identify your business, it is time to apply for a trademark registration. A trademark can be a word, symbol, and/or design used by its owner to distinguish its products or services and identify the source of your goods or services. Registered trademarks give exclusive rights to the owner to use that mark and defend against infringement. For small businesses that operate locally, you may only have to register your trademark on the state or (and) federal level. However, since the internet makes all things global you may have to consider international protection.
With respect to the timing with trademarks, small business owners may believe think they cannot get a trademark application on file until they actually use the mark. In fact, you may file what is known as an “intent-to-use” trademark application at any time as long as you have a bona fide intent to use the mark in commerce. This can help you establish a record that you are the first user of the mark, which is extremely important for potential disputes between two users on who gets the prevailing right to use the mark.
Secondly, when you launch your website copyright comes into play to protect your small business site’s original writings and artwork, and also things such as the HTML or code on your website. Copyright protection is your ability to make copies of your own original work. It is important to note that copyright protection rests with the creator of the work; so if you hire a graphic designer or copy editor, you should ensure that your agreement with them specifies that they provided “work for hire” and that you are the owner of all intellectual property resulting from their effort.
If you are the originator of your content, copyright protection comes inherently in your original writings or any other forms of creations. As long as your content is original enough and it is of a tangible expression, you have the exclusive right granted by law for the protection of your work. If your small business is particularly related to creative industry, like videos, music, photography, graphic design, or publishing, copyright protection should be a primary item on your “to-do” list. Copyright protects against unauthorized copying, distribution, adaptation, performance, display or importation. Alas, going through the formal copyright process makes it easier to defend one’s authorship in the event of unauthorized use and puts the world on notice that you have created the content.
Thirdly, what is the value proposition of your business? Whether it is a core technology, a formula, your secret ingredient, or a certain design that makes your product so recognizable be sure to explore whether that value proposition can be protected. Consider patent, trade secret or trade dress protections, all are essential elements of brand protection. For more information on how to protect your intellectual property as a small business owner, contact AMD LAW for support.