A common misconception I hear about brands and trademarking your brands is the idea that you have to file a formal trademark (or service mark) application for your brands to be protected by trademark laws. On a practical level, this is mostly true, but it isn’t entirely true.

Rather, you begin to form some common-law rights to a brand when you:

1. put it into use in the marketplace (for most of us, that’s on the internet). A domain is a good example here, and then…
2. you continue to use it, investing a little money and a little more time into it, and making (hopefully) a lot of money in the marketplace with it, and…
3. by continuing to claim to be the owner of it in the marketplace or by defending it.

When you do these three things, you’re already establishing some common-law claims and rights to your brand, even internationally.

Then, you can get substantially enhanced and more easily defendable rights to a brand when you continue by:

4. applying for, and hopefully receiving ;), an approved registration of the trademark by a registering authority (e.g., by the USPTO in the US).

The “Little Internet Problem” with Trademarks

Nowadays with the giant blossoming of the internet, the world is our marketplace! And this can create a problem for us if we try to rely solely on our common-law rights to our brands and tradenames. If we wait too long, other businesses (and proto-businesses) online may swoop in and register a mark before we do, even if their common-law claims were weaker than ours. It can and does happen, more often than you think.

And our little internet problem with trademarks is made worse because of how domain names are registered, owned, bought and sold on the internet. As you’re certainly aware, nearly anyone can go to any number of domain registration sites and for a little bit of money register any dot-com, dot-net or dot-biz that happens to be available via ICANN.

Without getting into too much detail here, the domain-name registration process has developed very separate and detached from the trademark registration process. In the US and elsewhere, this has been heavily litigated over the years but even with ICANN’s “streamlined” procedures, it’s still can be a bit of a mess.

To keep things simple, remember this:
Generally, in a global marketplace like the internet, an approved and actively registered trademark will legally trump other unregistered or common-law marks in the same industry or classes. This includes the rights of someone that has bought a domain name for the sole purpose of turning a profit on the resale of it.

So, especially lately, I’ve been coaching online business owners to sidestep the “little internet problem with trademarks” by doing step #4 above (applying for a trademark) earlier than I used to.

Still …

I will not coach you to totally throw caution (or your hard-earned money) to the wind.

Instead I’ll share with you some simple and practical information to help you come to an informed decision as to when you may want to apply for trademark registration.

Before You Apply for Trademark Registration

Looking back, especially recently, many of us online business owners have wasted our hard-earned money by applying for trademark (or service mark) protection too early. These “early” marks are often untested in the marketplace and we’ve never actually made any money to justify our seeking to register it.

Sometimes the mark is so weak or vague that, even if it’s approved by the registering office, it ends up being very difficult for us to defend it legally after we’ve registered it.

And, because our mark hasn’t made us any money, we also have no money to legally defend it. (Hello, Catch-22! 😉)

To resolve these issues, BEFORE you go looking for a trademark attorney or agent, I recommend you do the following TWO items FIRST:

Item 1: Before You Trademark

My first strongly recommended prerequisite for you BEFORE seeking the help of any attorney or agent to file a trademark application is that your business already be formed and registered as a business entity (e.g., an LLC, corporation, etc.).

When you get your business entity in place before you apply for a trademark then, as you can probably guess, your BUSINESS can be the APPLICANT in your TM application.

Without going into too much detail here, doing things in this order (that is, step 1, organize business entity; step 2, then apply for trademark protection), will save you a bunch of hassle later, will probably improve your chances of getting your TM application approved, and definitely will help you legally defend it later. It will also help in selling your mark or your entire business later!

But Are You Ready For a Business Entity?…

If you want a bit of free coaching from me to help you figure out if you’re ready for a business entity (an LLC, corporation, Ltd., etc.), then check out my [Article or Freebie?] about that [HERE].

Item 2: Before You Trademark

My second strongly recommended prerequisite is to follow my preliminary trademark income rule of thumb, which is that your online business is grossing over us$10,000 before you seek the help of a trademark attorney in seeking a trademark.

That is, in most cases, you’re going to want to achieve at least that total-revenue threshold before you be ready to justify the expense of applying for a trademark and getting it done right.

This first application probably would be to seek the registration of your business name or website name (or personal name in certain professional fields), at least to start.

Trademark Attorney vs Agent

I have a small confession to make. I now consider myself an online business owner first, and an attorney second.

Also, I’m not interested in providing you any legal services or serving as your attorney on your trademark registration application.

For these reasons, you can guess I’m fairly unbiased when I tell you that:

UNLESS you’re an attorney already…

OR you’ve already been involved in, say, 5 or more trademark applications in the last ten years AND you feel comfortable doing basically all the preliminary research on your own…

…then I have to recommend you seek the help of a qualified trademark attorney to help you file your TM application rather than going the DIY route and using one of the many non-attorney TM filing agents out there (at least for now).

Trademark law can be sticky business and is far more complicated than you might imagine. It also can be very time-consuming and expensive if you get it wrong. A good trademark attorney will also be able to help you later if or when it becomes necessary to defend your trademark(s).

Using the Trademark ® Symbol

Unlike with copyright, and with the use of the copyright © symbol (which you can find out more about in this Copyright Article of mine), under nearly every applicable trademark law, you legally can’t and shouldn’t use the “registered trademark” symbol (that is, the ® symbol) UNLESS and UNTIL your trademark application has been fully accepted and your trademark registration is approved.

What about using the “TM” and “SM”  symbols? … (you might be asking). … These symbols (I’m sure you’ve seen them before) usually stand for a trademark (“TM”) or service mark (“SM”) that is not yet registered with a registration authority, but whose “owner” is claiming some local or common-law rights to its use by the three steps I outlined at the beginning of this article.

So, you can use “TM” or “SM” on your up-and-coming brands, if you want to. BUT, don’t let your use of these allow you to think that your brand is secure. And don’t let it slow you down in your preliminary-trademark work once you’re business has met the two requirements I listed above (gross income and incorporation).

ALSO, by using “TM” or “SM”  you may be triggering a registration race if there happens to be someone out there on the internet who is using the same or a similar mark in your industry and has the resources in place to register the mark before you do.

If you think this last reason (a possible registration race) might apply to you, then you may want to wait to use one of these symbols until you have your registration application submitted and pending.

Trademark Help Sheet

Would you like to get all the info about trademarks in this Article boiled down for you in a one-page Cheat Sheet that you can print and follow? If so, for a limited time I’m making that available to you for free [HERE].

The post Trademark Your Brands for Your Online Business appeared first on Simply Done Legal.

Has it already happened to you and you want to prevent it from happening again?

When you create your own content, it’s a labor of love. And the last thing you want is for someone to try to steal that love and use it for nefarious purposes. But with so many potential thieves out there on the internet, what’s a great content creator like you supposed to do?

One of the most common questions I get asked by my members is how, when and if  they should apply for copyright protection by registering their copyrightable materials. Fortunately I’m about to give you some very good news on the subject.

First, Copyright or Trademark?

The other thing I hear often is the confusion between trademark and copyright, and which, when and how each one applies.  

On a practical level for our online businesses, copyright law is similar, but still somewhat different, than trademark law. If you’re looking for more info on [trademark], you can access my whole article about it [HERE].

But for the purposes of this article I’m just talking about the copyright which applies to all of your content that you’re putting out into the world.

How To Legally Protect Your Copyrightable Materials

Now let’s get down to business with this copyright stuff.

Here’s the good news!

Generally speaking, most national (and also international) copyright laws already provide your business’ and website’s original content substantial legal protections simply by your:

1. Creating it and being the author of it,
2. Publishing it, and
3. Continuing to claim to be the owner and copyright holder of it.

That is, in most cases, filing a formal copyright registration application isn’t necessary. You already have established rights as the creator and you can legally defend your own digital, photographic, audio, musical, video, artistic or text creations under applicable copyright laws. In most cases, even internationally.

Pretty cool, huh? …

You probably had no idea that some good legal mojo regarding copyright was already in place without any extra effort on your part. Most things related to legally protecting your online business do not happen automatically so let’s say hooray for the ones that do!

Would I Ever Need to Apply to Register My Copyright?

Possibly. Even though you get automatically the substantial legal rights and protections in copyright as I describe above, there is something else to consider.

If you’re doing full-scale online publishing of your own materials (e.g., ebooks that you sell, your online course materials, etc.), you may want to look into applying for copyright registration at some point.

While these materials are already protected under current copyright laws as I say above, this extra step could well be important if you ever decide you want to license your ebook or online course or even sell it outright.

Using the Copyright © Symbol

Unlike with [trademarks], under copyright law you can use the © symbol right away when you’re first publishing your content.

Note the details of how I use the © symbol at the end of this Article, which you’re welcome to mimic on your own copyrightable creations. (Obviously you’ll want to use your own date(s) and business name.)

If you don’t yet have a business entity, like my LLC, you can use your website URL instead.

So now you can rest easy knowing you have legitimate rights in copyright to your own brilliant creations without having to file (another) lengthy (and not-free) application to protect your online business. You’re welcome!

Get Your Copyright Help Sheet

When you’re ready to get all the info about copyrights in this article boiled down for you in a one-page Help Sheet that you can print for handy reference, then click [HERE].

And here it is, as promised: 🙂
© 2016-2018, Simply Done LLC, ALL RIGHTS RESERVED

The post Copyright Protection for Your Online Business appeared first on Simply Done Legal.

Maybe you don’t know the difference between copyright and trademark or what either of them really do. If that’s the case then don’t feel bad, you’re not alone.

Copyrights and trademarks are really hot topics these days. This is in large part due to the fact that everyone and their dog seems to have an online business and the amount of content being uploaded to the internet on a daily basis is staggering.

This never-ending desire that humans seem to have for new and interesting information is both a blessing and a curse. On one hand it means that literally anyone with a computer or a smartphone can get their creative juices flowing and start uploading their own amazing content. But on the other hand, there are many unsavory characters waiting in the wings, happy to copy that content and take all the credit.

And so naturally people like you who create their own brilliant content want to know how they can protect it. And more importantly how copyright and trademark play a part in that process. I’m going to give you a quick overview of both copyright and trademark so you can have a better understanding of how they can work to your benefit.

The attorney in me wants to point out that both the copyrightable assets AND the branding/trademark assets you create are called your intellectual property or IP for short. Protecting your intellectual property sounds really complicated, I’m about to show you how easy it can be.

What Is Copyright And How Does It Help Me?

Copyright protects your created content of which you’re the author or artist. This can and does include all your text-copy, photos, webpages, designs, videos, audios, music you compose and create, etc. These are all potentially protectable under copyright law.

Fortunately for all content creators, your rights in copyright are fairly easy to establish. There are substantial national and international copyright laws that protect your content simply by your:

1. Creating it and being the author of it,
2. Publishing it, and
3. Continuing to claim to be the owner and copyright holder of it.

There are some cases when applying for copyright registration is a good idea, but for most online creators, the current copyright laws are usually protection enough.

Now, if you want to know more about how you develop and legally protect your rights to your own creations under copyright law and how to grow the value of your copyrightable business assets, then check out my article [article about copyright]

What Is Trademark And How Does It Help Me?

Trademark is protection for a company and its branding with regards to its names, logos, taglines, designs or images. Basically anything that identifies its brand and distinguishes it from others. Having a registered trademark gives the best legal protection and provides more options when taking legal action against anyone using the same or similar marks without permission.  

A good example of a brand that everyone is familiar with is Disney. As you can imagine with a company that big, they trademark nearly everything they create. So if you created a logo for your company that was a beautiful ice princess named Ulsa, wearing a blue gown and living in an ice castle, you’d be getting a terse letter from the Disney legal team. Copy and paste an actual image of Elsa onto your website and you’d get that letter even quicker.

Now you might say that you’re just giving Disney extra publicity for their movie Frozen and they should thank you. But like it or not, you’re NOT Disney and by using their character without a license, you’re creating brand confusion which is exactly what trademark laws were created to prevent. If you have a licensing deal with Disney (go celebrate if you do!) then trademark laws (and a licensing agreement) still protect them in making sure you use that license properly.    

Your company may not be as big as Disney, but your registered trademarks protect your brand, logo, images, etc. in the exact same way which is a good thing.   

Note: People who offer services instead of products often will call their trademarks or brands “service marks”. It’s essentially the same thing, legally speaking, as a trademark, and the process for applying for either is basically the same.

Before You Apply to Register a Trademark

One major difference between copyright and trademark is that when you are ready to apply for trademark you’ll likely need the help of a qualified trademark attorney. This is not the sort of process most people should attempt on their own. Trademark law is a tricky area so while it will cost some money to hire an experienced attorney, it will cost you more in the long run if it’s not done correctly.   

Here are two things you’ll want to consider BEFORE you’ll go to apply for registering your trademark:

1. My first strongly recommended prerequisite for you before filing a trademark application is that your business already be formed and registered as a business entity (e.g., an LLC, corporation, etc.). My general income rule of thumb for your business project before you decide to form a business entity is only $6,000 per year or annualized (which is $500 per month). Still, I recommend you do some more research before forming a business entity, which you can continue with my article [name of Are You Ready For a Business Entity article]. 

2. My second recommended general income rule of thumb for your business before you seek the help of a trademark attorney in applying for a trademark is having over $10,000 total gross income. That is, in most cases, you’re going to want to achieve at least that income threshold before you can really justify the expense of applying for a trademark (or service mark) and getting it done right.

If you’d like to find more about how you develop and legally protect your rights to your brands and how to determine when you’re ready to go seek the help of a qualified attorney to register your brand as a trademark or servicemark, then check out my article [name of trademark article].

© 2016-2018, Simply Done LLC, ALL RIGHTS RESERVED

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