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Business Attorney Laura Cowan Weighs In On U.S. Trademark Protection

By Adriaan Brits. Originally published at ValueWalk.

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If you are an inventor, artist, or entrepreneur, you need to understand the legalities behind trademarks and how they can be used to protect your work. Trademarks help to protect a word, phrase, symbol, or device. It covers the distinguishing “mark” that is used to identify and differentiate merchandise from each other. McDonald’s has trademarked the phrase “I’m lovin’ it,” and Coca-Cola’s application to trademark the design of its curved glass bottles is approved. This means that no other company can legally copy these trademarked distinguishers to utilize as their own.

Laura Cowan, who has been named Rising Starby Super Lawyers in 2019, 2020, and 2021, an award reserved for the Top 2% of lawyers in NY, explains that trademarks are tricky because even though you might have a trademark to your name, it does not stop another business from using the same name for a different product. This means that if someone had to name a bookstore “Coca-Cola,” it could be allowed since it is difficult to confuse a bookstore with a cola drink. Ultimately, it depends on whether or not the use of your trademarked “mark” can confuse a customer with regards to what product they are actually purchasing.

Difference between Trademarks, Copyrights, and Patents

While trademarks, copyrights, and patents all serve to protect originality from being copied, they each serve their own unique purpose. Furthermore, protection for each is granted via separate applications and has individual requirements that defer. Intellectual property protection has always been a problem, but with social media sharing, e-commerce booming, and online pirating, it is becoming harder to keep track. This is because the very same platforms that allow you to gain more exposure– make it easier for others to steal your ideas.

In fact, if you have taken a photo or even written a letter, you have unknowingly created informal copyright. If you are an entrepreneur that has started a new business- no matter how small- you will most likely qualify for some sort of trademark protection. Come up with a new invention that you just think is an incredible life hack? You might be able to patent your idea. 

Copyright: If you have authored something that is original, you have control over what can be done with it. Copyrights are created automatically as soon as the work has been created; however, in order to get more robust protection, it is advised that you register with the government. 

Patents: Patents differ significantly from copyrights and trademarks in that they work on a first-to-file system. Patents are only issued on actual inventions and not ideas. So, while you can patent an invisibility cloak (if you can prove that it actually works), you cannot patent the idea of one without having a functioning prototype at the very least. Elon Musk once described patents as “a lottery ticket to a lawsuit.”

Trademarks: The U.S government states that “United States trademark law is mainly governed by the Lanham Act. “Common law” trademark rights are acquired automatically when a business uses a name or logo in commerce and are enforceable in state courts. Marks registered with the U.S. Patent and Trademark Office are given a higher degree of protection in federal courts than unregistered marks—both registered and unregistered trademarks are granted some degree of federal protection under the Lanham Act 43(a).”

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How To Apply for a Trademark

Applying for a trademark can be confusing, even for lawyers familiar with the process. The application process is done via The United States Patent and Trademark Office; while this process can be completed online without the aid of a third party, it is advisable that you seek the help of a legal professional. This is because most applications require further work beyond the initial application that non-lawyers are unlikely to understand.

Cowan, who specializes in trademark and business registration, says that “The odds of having your trademark application approved go up 50% working with a lawyer.” This is due to the fact that there are numerous nuances that get overlooked by laymen who do not fully understand the laws and processes behind the application.

Are Trademarks Protected Internationally?

United States trademark protection does not carry internationally, which means that your trademark will not be valid in a foreign country. Cowan explains that since trademarks are regarded as territorial, they are required to be filed in each country where protection is needed. 

However, if you have ownership of a trademark application that is pending before the U.S. Patent and Trademark Office or if you have a registration that is issued by the USPTO, the U.S government states that “you may seek registration in any of the countries that have joined the Madrid Protocol by filing a single application, called an “international application,” with the International Bureau of the World Property Intellectual Organization (WIPO), through the USPTO.  As of April 2014, U.S. applicants can concurrently seek protection in up to 92 countries.”

Final Thoughts

Trademark laws are set in place to protect owners from those who wish to piggyback on your success by imitating your “mark”  and confusing customers. While formal registration is not necessary, it is recommended. This can be done in your own capacity; however, a legal professional will be able to guide you through and make the process easier– so that you achieve the most favorable outcome and receive the protection that you deserve.

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