Protect Your Brand via Copyright


Brand owners may be able to use copyright law, in addition to trademark law, to better protect their brands.  “Hey, wait a minute,” you say.  “I thought this was a trademark blog!”  Well, it’s our job to make sure every aspect of our clients’ brands is protected in the best way possible—even if that means venturing into the world of copyright law (and patent law . . . but that’s for another post).

Copyright law protects original works, such as writings, pictures and works of art, which have been expressed in a tangible way.  Trademark law, on the other hand, protects words, phrases, symbols and designs that identify and distinguish the source of products and services.

Not sure how copyright law applies to your brand?  We won’t tell if you think your company’s latest advertising campaign is far from a “work of art.” Ask yourself two questions, though: Does my brand contain any elements that are ornamental or decorative (think logos, characters like “Tony the Tiger,” artwork on labels, or the design of a product that looks pretty neat, but doesn’t really serve a purpose)?  Second, are these elements creative and original works?  If your answer to both these questions is “yes,” you may have material that can be protected under copyright law.

Even the text you include on packaging and in promotional materials may be creative enough to warrant copyright protection.  But here’s where it can get tricky:  While a simple list of ingredients or a short phrase probably does not involve the required degree of creativity, the selection or arrangement of these elements could be copyrightable.

Owning a copyright registration expands the scope of protection for your intellectual property and helps fill gaps in an existing trademark regime.  Let’s say you own a trademark registration for a logo used on candy.  What happens if someone else starts using the same logo on lawnmowers?  You may not be able to do anything to stop them because your trademark registration is limited to candy—unless you’ve also registered your logo at the U.S. Copyright Office.  Under copyright law, you may be able to prevent a third party from using your logo with a wide range of goods and services.

Along with expanding protection, copyright law accords a number of benefits to owners of registered copyrights.  Copyright owners who have made timely registrations are eligible for greater damages in infringement proceedings and for reimbursement of attorneys’ fees and costs. And don’t forget the “notice and takedown” benefits provided by the Digital Millennium Copyright Act.

Keep in mind that your company website probably includes a lot of copyrightable text and pictures advertising your products or services.  Because it can be easy for others to copy and share online content, it’s important to make sure these elements are adequately protected.

Still not convinced that copyright law is right for your brand?  It’s generally less expensive (lower filing fees!) and easier to register copyrights than trademarks, and there is little in the way of maintenance.  In many cases, this makes the added protection conferred by a copyright registration well worth the modest up-front investment.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.


About the Author: Janet Fries

Janet Fries protects and champions creative expression by artists, filmmakers, authors and others. She seeks to ensure that clients, both individual artists and corporations operating in entertainment and the arts, reap the rights and benefits afforded to them under U.S. and global intellectual property laws through negotiation, mediation and litigation. A trained fine art photographer herself and a leader in the community of lawyers who serve artists, Janet is immersed in the field both personally and professionally.


About the Author: Kelly M. Young

Kelly Young helps companies build and protect their intellectual property assets worldwide. Kelly counsels clients on all aspects of domestic and international brand management, navigating the entire lifecycle of trademarks from creation and clearance, to filing and registration, and finally to maintenance and enforcement. She manages trademark portfolios of all sizes and advises companies ranging from startups to large multinational corporations on their branding strategy.

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