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Small Business Help: When to Use a Trademark, Patent or Copyright

Here's how to protect your company name, your brand and your invention.
When to use a trademark, copyright or patent.

I Love Making Money Staff & writers

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When you start a business or write a book/song or invest something new, there are three bodies of law that protects each type of work. Check out our viral TikTok that shows you the differences:

@thebusinesskid

How to protect your brand and when to use trademarks, copyright or patent. Posted at ILoveMakingMoney with shortcuts to the forms to use. ##business

♬ original sound – thebusinesskid

QUESTION: Do You Need Checks for Your Business?
These are the hard to find laser printer checks here.

When Do You Use a Trademark?

The company name Nike using the Swoosh logo with the slogan, “Just Do It” would trademark all three. The main benefit of registering a trademark is exclusivity. That means you will be the only one in the entire country able to sell products and services with that name, or you can earn money by licensing it out.

If you have a business, a band or a brand, then you’ll want to trademark your commercial name, your slogans and logos. These would fall under a trademark. Trademarks fall under the umbrella of the U.S. Patent and Trademark Office.

A valid trademark can be bought, sold, licensed and used as a security interest for acquiring a business loan. Click To Tweet

How Do You Search and Register a Trademark

Did you know that Pepsi first registered their trademark in 1896. Trademarks are an asset that live as long as your business, and the only requirement is to file the occasional renewal form.

Step 1: You can search the trademark database here.

You’ll want to make sure that there are no trademarks that are live, that are similar to your trademark and are used on related products or related services.

What to expect

Searching for conflicting marks before you apply is called a “clearance search.”

Include other sources in your clearance search

Searching is only one part of a thorough clearance search. There may be trademarks that are not in our database that have rights over yours. Check other sources, such as state trademark databases and the internet.

Registration is not guaranteed

We will carefully examine your application to see if your prospective trademark meets the requirements for federal registration. Although this includes doing our own database search, there are many considerations. We may find a conflicting mark or another legal issue that bars your registration.

Step 2: Apply for your trademark here.

When Do You Use a Copyright?

If you write a book or a song or even create software code or a specialized test, then these would fall under a copyright. Copyrights are granted by the U.S. Copyright Office.

Copyright protection is protected in the constitution. In Article I Section 8 of the Constitution, the “Copyright Clause,” the founding fathers recognized a group of rights protecting authors and their many forms of original expression.

Did you know that your works are automatically protected by U.S. copyright laws? As of January 1, 1978, under U.S. copyright law, a work is automatically protected by copyright when it is created.

Download the copyright protection e-book here.

Copyright Terms

In order to warrant copyright protection, your work must be an original & the holder has exclusive rights to print & distribute the work. That also means that the work must be “fixed in a tangible medium of expression” like a book, a chart, print, sculpture, film, map or sound recording.

Copyrights last for the life of the author plus 70 years.

Should You Register a Copyright?

Since the copyright protection is automatic from the moment a work is created, registration is not required. However, here are some reasons why you would register your work.

  • File a Lawsuit – you must register your copyright before you can sue someone for infringing on your copyright.
  • Evidence of Validity – creates the evidence that your copyright is valid and filing within 5 years of publishing your work will help you in the event you need to bring a copyright infringement lawsuit.
  • Statutory Damages & Attorney’s Fees – to be eligible for damages, the work must be registered before infringement commences.

You can register a copyright here.

When Do You Use a Patent?

Under U.S. patent law, you must file your patent application within one year of the first offer to sell your invention, or within one year of your first public use or disclosure of your invention. This means you must determine the first offer to sell date or the first public disclosure date.

Primary Benefits of a Patent

The primary benefit of a patent is your right to stop competitors from selling the same product. You can become the sole supplier of the product. Based on the law of supply and demand, lowering the supply allows you to sell your product at a higher price. If sales are strong, then the patent is absolutely worth it.

One reason why patent law is so robust is its broad categories of inventions.

Patent Criteria

In order to patent your invention, it must be one of the following:

  • Process: A process is a series of steps to bring about a useful result. Process patents often describe ways of making things, like an assembly line. Processes also describe complex systems like telecommunication platforms or computers with integrated software.
  • Machine: A machine is made of parts. Your lawnmower, your smartphone, or even your toothbrush—all of them are patentable inventions.
  • Manufacture: A manufacture is a new material made by the combination of one or more other materials. Think concrete or drywall—if you change the recipe and create a new kind of manufactured material, then you have a patentable invention.
  • Composition of Matter: Where a manufacture combines existing materials, a composition of matter is a new kind of material. Think a new kind of drug with a unique chemical structure or a new kind of plastic. Compositions of matter often require advanced understanding of chemistry or materials science and a lot of hours in the laboratory to create.

Inventions that fall outside these categories—whether recipes, scientific discoveries, or abstract mathematics—are not patentable.
Source: Joe Runge, Esq.

Types of Patents

There are three types of patents:

1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant. Source: USPTO

Quick Shortcuts to Patents

Searching Full Text Patents (Since 1976)

Customize a search on all or a selected group of elements (fields) of a patent.

Searching PDF Image Patents (Since 1790)

Searches are limited to patent numbers and/or classification codes for pre-1976 patents.

USPTO Patent Application Full-Text and Image Database (AppFT)

Search for Full-Text and Image versions of patent applications. Customize searches on all fields of a patent application in the AppFT for Full-Text searches.

Frequently Asked Questions about Trademarks, Patents or Copyrights

When do I use the trademark symbol?

You would use the TM symbol to represent goods and services that are not federally registered with the USPTO, including registrations that are pending. The TM symbol and the word trademark is interpreted as broadly covering both product marks and service marks.

Do trademark symbols go before or after?

The TM symbol for trademark goes before the final punctuation.

How much does it cost to use the TM symbol?

The filing fees range between $225 and $600. If you don’t have the funds available to the pay the fee, you can still use the TM as a placeholder on your mark.

Is it legal to use the TM symbol?

The TM and SM symbols are used with unregistered marks. TM for trademarks for goods and SM for service marks for services.

What does TM mean in a logo?

TM is used to provide notice of a claim of common-law rights in a trademark. A TM is used in connection with an unregistered mark to inform everyone that a term, a slogan or a logo is being claimed as a trademark.

How long do US trademarks last?

Unlike patents and copyrights, trademarks do not expire after a set period of time. Trademarks will persist so long as the owner continues to use the trademark.

What does a circled R mean?

The R in a circle comes from US law and indicates that a trademark is registered with the USPTO. Use of the ® confirms the mark’s full trademark protection.

When do I need a patent?

Under U.S. patent law, you must file your patent application within one year of the first offer to sell your invention or within one year of your first public use/disclosure of your invention.

Should I patent my idea before someone steals it?

No. You cannot patent ideas for an invention. The invention has to be produced. While all inventions start with an idea, not every idea can be called an invention.

What are your thoughts? Leave a comment – let’s start a discussion.

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One Response

  1. Ronnie Perilloux November 10, 2020

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