To trademark or not to trademark?
*this article is from the Creator Intel Newsletter.
Trademarking is the highest level of IP protection for your brand name, stage name, logo, or insignia. Filing a successful trademark means that you’ll be able to stop impersonators or competitors from using your trademark, and platforms often take quicker action to take down fake accounts if you have trademark protection.
Conversely though, trademarking also means that if your competitor completes a trademark before you do, then they have the protection and can stop you from using the trademark. This is the case even if you were using it first! This is why I often tell clients that it’s very important to trademark your brand name (or stage name) once you reach a certain level of financial success. Getting that IP protection is a foundational pillar in protecting your brand.
In addition, the trademark process is expensive. For each category or “class” of goods that you file for trademark protection for, the USPTO charges $350. And the process is deceivingly complicated. You must ensure that your trademark is being adequately used in the classes under which you’re applying, you must be thoughtful about which classes to apply under, you must do a comprehensive trademark search to ensure no competing marks exist, and often times you must correspond back and forth with the USPTO to argue for why your trademark should be granted.
For all of these reasons, I highly recommend you work with an attorney to get your trademark done if you are considering it. Platforms like Legalzoom may offer trademark filings, but they often don’t do any follow up with the USPTO to ensure the trademark successfully registers, and they don’t advise you on how you can modify your business assets to optimize for trademark application success. I help folks with all of these things, so reach out if you are thinking about getting something trademarked!
Is Copyrighting Worth It?
A lower form of IP protection is formal copyright registration with the US Copyright office. This type of protection is mainly only worth it when you are trying to get an impersonator account or video taken down from a platform (YouTube is usually where this happens). If a platform has ignored your requests to get an infringing piece of content taken down – whether it’s a re-uploaded version of your video, or a plagiarized video – then getting copyright registration of your content can help get the platform to listen to you and get the video taken down. These registrations can also help if you need to play “defense” against the competitor who is also claims that you are infringing on their content.
But otherwise, I think the value of copyright registration is limited, mainly because you are granted common law copyright protection for your content as soon as you publish it publicly. In other words, you don’t need to register your work with the copyright office to have copyright protection. You automatically have that protection once you actually release your work.
Other Quick IP Notes
Get an NDA signed to keep information confidential. Otherwise, the information shared probably isn’t confidential! Reach out and I can get you a form.
If someone is working for you on IP-related aspects, make sure they sign an IP assignment agreement. Otherwise, the IP they make may not be yours! This includes video editors, graphic designers, videographers, or photographers.
If you plan on getting a trademark, make sure to purchase the corresponding domain address before the trademark application is filed. Lately, domain squatters have been purchasing domains that match filed trademarks (e.g., you want to trademark “Cavapoo King” then make sure to get the domain cavapooking.com before you file a trademark. Full disclosure, I am a Cavapoo King as I have two of them 🐶).
The entire trademarking process is public information.
General terms, e.g., “I love you” will not be granted trademark approval since they are too broad.
Patent protection is for technical or mechanical products (usually, design-based). Though not the norm in our line of work, let me know if you need help with a patent filing and I can get you the help you need.
OTHER NOTES:
Anyone else building long form YouTube these days? That’s where most of my creator energy has been. Let me know – would love to support each other in this journey!
Substack continues its growth in the creator space. The former newsletter-focused platform now offers video, short form text, and image posts, and creators continue to flock to the platform.
Can We Help?
As a quick reminder, we help with much more than just brand deals. We can draft employment agreements, handle entity formation, file trademarks, draft demand letters, send cease and desists, negotiate startup financings, and facilitate settlements (both in an employment and brand context).
