Intellectual property is increasingly important, even for smaller businesses. But the landscape of trademarks, copyrights, and patents can be overwhelming. Some businesses will never file a single copyright or patent, but almost every business will need to trademark certain attributes. Does your Florida business need a trademark? Short answer: probably.
What Is A Trademark?
Trademarks are completely different from registering your name or business. Trademarks are granted to individual people or corporations, and protect anything from words and phrases to logos that are associated with a particular company or product. If you’re using unique branding that is integral to your company, brand, service, or a product, a trademark can ensure that no one can copy your materials. Brand logos and primary assets should always be trademarked. Without a trademark for your brand logo, people can use it to do business.
You can begin to use business names and logos without trademarking them. But if there is a dispute with a similarly named or branded company down the road, and you don’t have a trademark, you have a limited number of legal options.
What’s The Difference Between Trademarks, Copyrights, and Patents?
Both are considered intellectual property, but a copyright applies to particular works of intellectual property that can be copied and distributed. For example, if you make a movie you’ll own the copyright to the movie. You can distribute as many copies as you’d like, but you can prosecute other people who make copies of your movie. Trademarks are generally not for works of art or intellectual property. You don’t usually sell the use or distribution of your trademark to others.
Patents can only be filed for technology or processes that are novel in some way. A copyright refers to a finished product and not the process. Common copyrights are music, art, software, and literature. Patents would be for a printing press, a new type of computer transistor, or a new type of speaker. You can also file a design patent that would protect certain features or constructions of objects or intellectual property.
Advantages Of Trademarks
Patents and copyright expire after a certain number of years, allowing that intellectual property to move into public domain. But trademarks don’t expire. However, the scope of a trademark is limited far more than the scope of patents and copyrights. You wouldn’t be able to trademark an entire movie. You can only trademark simple branding materials.
What Can I Trademark? What Should I Trademark?
Trademarks can apply to names, logos, shapes, and colors. Simple colors can be trademarked if they help to identify the brand. Same with shapes. Words can be trademarked, but you’ll have to show novelty or that the words are not in public use.
The big limitation is that you cannot trademark anything that is functional. Basically, you might be able to trademark the logo on the back of the laptop but you couldn’t trademark the hinges that the laptop opens on. But you might be able to trademark the shape of the hinges if the shape isn’t functional! It’s a complicated process.
What Types of Trademarks Are There?
There are basically three types of trademarks that you can get, based on how distinct the intellectual property is considered.
Arbitrary trademarks (fanciful trademarks) are the most specific. These are distinctive words, colors, or designs that are considered novel within their context of use. It might be hard to trademark the word “Lemonade” in the context of food, but you might be able to get arbitrary trademarks in a software context.
Next there are suggestive trademarks, which aren’t as specific. The law protects these terms or designs but other companies use them in certain contexts.
Finally, generic trademarks (descriptive trademarks) are fair use in the eyes of the law. It’s generally impossible to trademark a generic term unless the term becomes almost exclusively associated with a certain company over time.