Frequently Asked Questions

What is the difference between a trademark and a copyright?

A trademark is a name, logo or slogan that identifies a product or service as coming from a particular source. It must be associated with goods for sale or services provided. 

A copyright protects original expression of an idea. That expression must be tangible, such as a written or recorded song, text, visual art and even computer code. To be original, it needs to not be an obvious organization of things and not be copied. There is much more to it, obviously, but the thing to remember about copyright is that it cannot be copied, and it protects the expression (the how) not the idea itself (the what).

Do I need an attorney to file for a trademark registration?

You can file for a trademark registration yourself online, and the US Patent and Trademark Office (USPTO) has provided lots of information on how to do it. If you have a simple one, this could be a good option. However, it is easy to make mistakes that cannot be undone by amendment, and the USPTO does not refund your filing fee if you do. Having an attorney helps you choose the right mark to begin with, negotiate all the rules and regulations to get your registration, and will track the various deadlines for you , as well as be able to answer all your questions along the way. The filing fee for trademark application, per class of goods or services, is now at least $225, and that fee is lost if you make an uncorrectable mistake or if you have chosen a mark that is unregistrable in a way that a trademark attorney could have foreseen. In addition, Office Actions which require an official response within a deadline are usually issued, and a trademark attorney will often help respond to those within the cost of the initial engagement if there is a flat fee.

Can I trademark any word I want?

Despite what news stories about celebrities would have you believe, you definitely cannot trademark any word you choose. Trademark law prohibits the registration of marks for a whole list of reason such as marks that are merely descriptive, likely to cause confusion with another previously used mark, merely geographively descriptive, or misdescriptive. There are more, but you get the idea. Also, the mark must be associated with the sale of good or service and used in commerce. Someone cannot just monopolize a phrase they like unless it meets all those criteria, and a few more.

How long does it take to get a registration?

It usually takes about a year for an application based on use, as it takes a while before an application is examined, then there is time to respond to Office Actions, then it is published with an opposition period, followed by registration issuance. If the application is filed based on an intent to use in commerce, it can take longer, as the proof of use will need to be filed and examined as well. That being said, I’ve filed some perfect ones that went through in six to seven months, but that’s about as fast as it gets. However, the USPTO makes it easy to track your application’s progress and acts quickly once the application gets in front of a person.

If I spell my mark a different way, is it then okay to use?

No, under trademark law, the spelling, pronunciation and pluralization of a mark doesn’t necessarily matter at all. The mark cannot be confusingly similar to another mark already in use, and it can still be confusing even if there are some obvious differences in a side by side comparison. There is a rich body of law surrounding analyzing likelihood of confusion, but the simple answer is that an addition or change in the mark is not a “get out of jail free” card.

If I mail something to myself, is that as good as a copyright registration?

No, it’s not. It’s possible that an unopened envelope enclosing some copyrightable work could prove the work existed before another work existed, but that’s all. Since copyright registration is very economical, is easy to do online and does actually confer meaningful legal presumptions, I’d spend my time and money on a real registration. Unlike trademark registration applications for which I recommend using an attorney, copyright registrations can easily be done by individuals for just the cost of the filing fee.

If I change part of something I want to use, does that avoid copyright infringement?

Once again, no. There is no magic percentage of change that avoids copyright infringement.  The general rule is if you are copying it, you are probably infringing it. If you didn’t make it, you don’t own it or have the right to use it without permission.

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