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.

and This entry was posted in Copyright.
Date Published: May 20, 2016
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.
Kelly M. Horein is an associate on the Trademarks team of the firm’s Intellectual Property Practice Group. Kelly’s practice encompasses all aspects of brand management, including domestic and international trademark clearance, registration, and enforcement. When litigation is necessary, Kelly assists clients with disputes, including trademark opposition and cancellation proceedings before the Trademark Trial and Appeal Board of the United States Patent and Trademark Office, and trademark litigation in federal court. In addition, Kelly prepares and negotiates intellectual property agreements, counsels businesses on website development and social media issues, and assists them with assessing product packaging for compliance.