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Have you been thinking about transitioning or expanding the online presence of your business? Many businesses are successfully selling online, but lack sufficient understanding of various branding laws that would further strengthen their product and service portfolios. Many design and media houses creating brand platforms for businesses don’t have sufficient understanding of intellectual property rights to deliver to their clients optimal ROI. This quick guide will enable you to learn the language and seek the additional help that you need to protect your business and its intellectual property online.
What’s the Difference between Copyrights and Trademarks
Trademarks and copyrights are often confused, and for good reason, since there is some overlap. Copyrights cover creative or intelligent works, while trademarks are source-identifying marks. And to blur the lines a bit, some forms of works can fall into both categories, like logos and jingles, which can be considered both creative works and source-identifying marks.
Trademarks are your brand marks: your business name, product names, and logos. It can even be an identifiable sound or scent, like NBC’s bells or the smell of Chanel No. 5.
There is a large range of works that fall under copyright law.
– Literary works: books, poetry, blogs, articles, and the printed text in marketing materials;
– Performing arts: sound recordings and podcasts;
– Visuals arts: visual and photography elements of any advertisements, logos, website, labels, and product packaging;
– Digital arts: graphical user interface, apps, and virtual reality environments;
– Motion pictures: commercials, banner advertisements, and slide presentations; and
– Photographs: everything from professional photography to selfies.
Where do I get a Copyright/Trademark?
These two intellectual property assets are governed by two different offices, copyrights being controlled by the U.S. Copyright Office and trademarks (along with patents) being managed by the U.S. Patent and Trademark Office and additionally by state trademark offices. While trademarks can applied for at both a state and federal level, there is no such thing as a state copyright.
How Long Does a Copyright/Trademark Last?
The life expectancy for copyrights is significantly shorter than that of trademarks. As long as a trademark is used and maintained, it can live forever. On the other hand, a copyright’s life expectancy will depend on the filer. A copyright filed by an individual can only survive for the life of that individual plus 70 years. A copyright filed by a business can live 120 years from the date of creation. Some exceptions apply, so speak with a copyright attorney.
What do I need to File a Copyright/Trademark Application?
When filing for a registered work, a copyright must first exist in a tangible form. That means that it needs to be written out, typed to paper or saved on your computer. “Living works of art” like floral arrangements, typically cannot be protected.
A trademark can be filed before it even exists in commerce. However, proof of use in commerce must be submitted before the mark can reach registration. Alternatively, a trademark application can be filed once the products or services associated with it are already being sold on the market.
What Symbol Do I Use?
To give proper notice of your copyright to the world, you’ll want to attach the copyright symbol to your work. You can do so by using the word “copyright” (or its abbreviation), the year the work was first published, and the name of the owner. For example, at the bottom of the Rockridge website, which the firm claims as its copyrighted work, you’ll see “© 2020 Rockridge Venture Law.”
o ©, Copyright or “copr.”
o Year of first publication
o Name of copyright owner
o Ex.: © 2020 Rockridge Venture Law
To give notice of your trademark ownership, place a trademark symbol next to your mark. The symbol should be close enough to the mark so that a clear reference to the mark is made, but there is no special placement requirement (left/right of mark, subscript/superscript). However, it is common to place the trademark symbol as a superscript to the right of the mark.
There are two trademark symbols, ™ and ®. TM has a universal use and may be used on both registered and unregistered marks, whereas Circle R may only be used to identify marks that have been registered with the federal trademark office.
What are the Benefits to Copyright and Trademark Protection?
When you receive your copyright or trademark registration, you’ll not just have peace of mind, but also access to a number of market and legal benefits.
You’ll be able to protect the value you’ve created by filing complaints with online platforms for infringing use. You can also file both your trademarks and copyrights with U.S. Customs to prevent international infringing uses from coming into the country. And once you prove infringement, you’ll be awarded either minimum statutory damages (copyright) or actual damages (trademark and copyright).
You can learn more about the benefits of having a registered trademark here: Benefits of a Registered Trademark.
What Damages do I get from Infringement?
A very significant difference between copyrights and trademarks is the infringement damages tied to either form of intellectual property. Under copyright law, copyright holders are entitled to receive minimum statutory damages, and do not have to prove actual damages from the infringement. Statutory damages for infringements that cannot be clearly proven as either innocent or willful are usually between $750 and $30,000 per work, as determined by the court. The exact amount depends on the seriousness of the infringing act and the financial worth of the infringer. On the other hand, an innocent infringer—that is, someone who didn’t know they were violating copyright law– may have to pay as little as $200 per work. This would be especially true if the work did not have a proper copyright notice. An intentional or willful infringer may have to pay as much as $150,000 for a single infringement of one work.
Statutory damages are going to be awarded “per work”, meaning that if an entity used seven or eight of your designs, that entity is now liable got statutory damages for each one, for a total of seven or eight awards. Where the typical award range is between $750 and $30,000 per work, you’re looking as an award between $5,000 to $210,000 dollars for taking a measly seven images to use on blog posts.
This minimum statutory damages framework almost certainly guarantees a pay day. The alternative to this framework is to award actual damages. Actual damages must be proven in court and can be very difficult to determine because it requires calculating a profit that would have been made from a transaction that never occurred, as well as any additional profits that infringer received as a result of using your works without permission.
Unfortunately, trademarks rely on the actual damages calculation and are not entitled to minimum statutory damages. Under trademark law, courts are going to have a wide range of discretion in setting any damages for trademark infringement. A court may award anywhere from $500 to $100,000 per counterfeit mark for each type of goods or services offered under that mark, and has the discretion to increase damage awards as needed.
To learn more about utilizing copyrights and trademarks in e-commerce, check out our video E-Commerce Law 101.
About RVL®
Rockridge Venture Law® is a certified B Corp law firm embracing the mantra of technology lawyers for good. Rockridge® services include corporate, intellectual property, litigation, M&A, privacy, technology, and venture capital law. Rockridge has been recognized as a B Corp Best for the World and Real Leaders Top 150 Impact Company, and has been featured by Conscious Company Magazine, Forbes, and other top media focused on industry leaders in impact and innovation.
The Rockridge team has worked with Grammy winners, Nobel Prize winners, and world champion athletes to create and monetize distinctive intellectual property assets. Rockridge clients include founders, investors, and multinationals scaling disruptive technologies and iconic brands. Rockridge is headquartered in Tennessee, with satellite offices in Durham, New Haven, and New York.
We’re Building Today’s Company for Tomorrow’s Economy® by leading clients through the dizzying array of information controls, by helping them to develop and monetize proprietary assets, and by enabling their impactful products, programs, and principles.
See case studies on how we’ve helped transformative companies at Rockridge Case Studies.
Please note that this guide is for informational and advertisement purposes only. The use of this guide does not constitute an attorney client relationship. As laws frequently change and may be interpreted differently, RVL® does not in any way guarantee the accuracy or applicability of this information.
