O is for Ownership: AbuLLard's ABCs of Branding
"A trademark is a distinctive phrase, word, logo, or
other graphics that serve to identify the source of a product, and to
distinguish that product from competing products in the marketplace.
Examples of trademarks include FORD®, IBM®, VELCRO®, FORMICA®, "Have it your
way®", and "Fly the Friendly Skies®." Each of these well-known marks calls
to mind a particular company and their distinctive products."
"A strong trademark is a mark that is distinctive
because the words or graphics are creative or out of the ordinary. For
example, unique logos, made up words (Exxon), words that are surprising in
their context (Diesel fashions), words that are suggestive without being
literally descriptive (Slenderella) qualify for strong trademarks. On the
other hand, people's names (Ray's Pizza), descriptive terms (Quality
automotive), and locations (New York motorcycles) are not considered to be
inherently distinctive, leading to weak trademarks or no marks at all."
"Trademarks are obtained by applying to the U.S.
Patent and Trademark Office (www.uspto.gov).
Be sure to seek the advice of qualified counsel before applying for your
mark. For the best protection create something unique, apply for your
trademark, and use the mark to build your brand."
Copyright is a form of protection provided by the
laws of the United States to the authors of “original works of
authorship,” including literary, dramatic, musical, artistic, and certain
other intellectual works. This protection is available to both published and
Copyright protects "original works of authorship" that are fixed in a
tangible form of expression. The fixation need not be directly perceptible
so long as it may be communicated with the aid of a machine or device.
Copyrightable works include the following categories:
- literary works;
- musical works, including any accompanying words
- dramatic works, including any accompanying music
- pantomimes and choreographic works
- pictorial, graphic, and sculptural works
- motion pictures and other audiovisual work
- sound recordings
- architectural works
These categories should be viewed broadly. For example, computer programs
and most "compilations" may be registered as "literary works"; maps and
architectural plans may be registered as "pictorial, graphic, and sculptural
No publication or registration or other action in the Copyright Office is
required to secure copyright. Copyright is secured automatically
when the work is created, and a work is "created" when it is fixed in a copy
or audiorecorded for the first time. There are, however, certain advantages
to registration. For more information go to:
Patents are used to protect inventions. A patent
consists of a description of the invention and claims of its capabilities
and applications of the specific invention. It's best to have a patent
drafted by an intellectual property or patent attorney who understands how
the process works. For more information about filing a patent, call the U.S.
Patent & Trademark Office (800) 786-9199 or visit the USPTO website:
Copyrights protects original artistic, literary,
dramatic, musical and other intellectual property works, including
compilations such as multimedia works and computer programs and websites.
You cannot copyright an idea! What you can claim copyright in is your
original expression of an idea that is written down. You cannot copyright
names, titles or short phrases. You can indicate "ownership" on an image,
artwork, web site or document by putting a notice "Copyright (year) by (your
legal name)" in a visible spot. You can also file legal documents with the
U.S. Copyright Office.
Type of Imagery
Fine art is typically created for its aesthetic or artistic value. As such,
it is usually not copyrighted, not trademarked, and not protected. Images of
fine arts have widespread use, especially as a means of awareness — of
either the artist or the art itself.
Work for Hire
As a rule, work for hire is protected because someone has explicitly paid
for its creation. That creation is commercially motivated — either as a
personal or business asset. Oddly though, the rules here for illustration
and photography differ. Illustration follows the rules of commission work —
whoever paid that commission fee owns the source artwork. With photography,
the photographer (a.k.a. the artist), not the buyer, owns the image source.
Some images already carry copyright statements with them. They may even
carry trademarks. Logos, merchandised images (like Snoopy or Mickey Mouse),
and professional photography are examples of such work for hire.
When an image is used without copyright or trademark, or that copyright is
not renewed, it can slip into the public domain. Equally important, when a
copyright or trademark is not protected even though it is up to date, and
the image is in widespread use by anyone, it may also be considered in the
public domain. This establishes precedent that anytime in the future, anyone
can use the image without permission.
Between copyrighted images and public domain lies clip art. Clip art is
copyrighted but those rights are frequently unenforced. Why? Perhaps because
the business interests of its owners are best served by widespread product
use and by interesting potential buyers in buying the product.
If you need help doing this,
contact AbuLLard. He'll be glad to help!