Copyright, Trademark, and Intellectual Property Tools Every Business Needs
Hi, I’m Brittany Ratelle, attorney for online business owners. Here we make legal fun because your business is worth having it DONE. And today we’re going to be talking about intellectual property and brand protection, because believe it or not, just about everyone you know, including you, probably has a brand. We want you to know what things you need to be doing today, tomorrow, and 5-10 years from now to make sure that you protected your brand so that it can grow as big as your dreams. We’ll go through each of the four tools you need to protect your brand, as well as some good online business etiquette tips.
Disclaimer: As a reminder, while I am a licensed attorney and I practice in Utah and Idaho, I’m not your attorney. This is not an official attorney-client relationship or legal advice. If you have any questions, make sure to reach out to a qualified, legal professional in your jurisdiction.
The Four Tools You Need to Protect Your Brand
Today we’re going to talk about how to protect your brand and specifically about the tools that we use. We also call these intellectual property tools or IP for short. If you ever hear the acronym IP, it stands for intellectual property, and it’s a really important concept and principle to understand as a business owner.
It’s especially important if you are selling, licensing, or renting intellectual property. This is also important for my clients or audience members like you, who are authors, teachers, bloggers, creators, YouTubers, podcasters, online course owners, digital product owners, or lots of other jobs that might involve intellectual property.
Everyone Has a Brand
It seems like everyone and their mom has a brand nowadays.
Whether you’re a window washer, dog walker, Etsy shop owner, blogger, creator, or influencer, your brand has a presence online. Even more established brands and people who sell retail or consumer product goods need to think about their branding.
There’s a reason why branding has become so powerful in our ways of communication. Distribution and marketing have become democratized and it has become easier for people to get in touch with their audience and sell their goods and services. This means that it’s become all the more important to be able to differentiate why a customer should you buy from you versus the person next to you. You need to show them why they should watch your video or content versus the other options that are available. Branding is a huge part of setting yourself apart in that distinction that comes into making sure people know you, like you, trust you, and can find you again. You also want them to refer and recommend you to other people so that you get that social proof in that word of mouth.
I probably don’t have to convince you anymore that brand protection is super important. It’s a really fundamental thing that all business owners need to understand.
Tool #1: Copyright
Our first tool we’re going to talk about is copyright. This refers to original creative works. Here in the United States, as soon as you create something and fix them in a tangible medium (that’s lawyer speak for it’s in something like a file format), they become copyright. Your idea could be drawn by hand, drawn on an iPad, recorded with a microphone, on a video, written in a book by hand, or on a keyboard. Technology isn’t as important as the fact that it was created. Once it is created, it has automatic copyright protection by the creator.
Automatic means that you don’t have to do anything. You don’t have to put up the special © symbol or mail something off to Congress. It’s automatically created. This is incredible news. And it’s really a huge reason why the U.S. has such a robust, creative economy and is able to protect and extend creative freedom to so many different things. It also spurns innovation because people can create works and they immediately own them.
Now they have the option and the menu before them of what to do with those works and how to parcel out those rights or serve up those slices of their cake. When I teach and do workshops and masterminds, I tell my audience that they each create a copyright cake or an intellectual property cake. You bake the cake and you get to decide who gets to have those cakes slices.
The nature of selling or renting out those slices is called licensing. It’s something I’m sure you’ve seen a lot in music and media. It’s something that can apply to copyright and to trademark. What exactly counts as a creative work? What are the things that you would want to register to protect the copyright for your business? This represents the creative guts of something that you’ve created.
It could be anything from your website text, to a book, ebook, online course, membership, worksheet, handouts, journal, graphics, pattern design, original audio, photo, or video. All of those are protected by copyright law.
Copyright is the scheme and the tool that we use to control it. We want to control who gets to use it, how they use it, and for how long. We always want to have the answers to those questions in writing.
Tool #2: Trademark
Next, we are going to talk about trademarks. A lot of people get mixed up between copyright and trademark, but after reading this post, you’re going to know the difference. You’ll be able to use it in your business and explain it to other people.
While the copyright protects the creative guts of a work that you created, a trademark protects branding elements and branding assets.
This could include the name of a company, the logo, a product name, a product collection, a tagline, a slogan and even the look and feel of the packaging. It can even protect smells or things that you hear in connection with the business and its branding.
Don’t get too excited. Sometimes people think “Oh! This is my secret to making sure people don’t rip me off.” Those kinds of external appearance trademarks are more challenging acquire. Also, they may require you to go on more of a branding journey for you to prove trademark infringement to the U.S. Patent and Trade office (the government agency in charge of monitoring and keeping track of trademarks).
You will have to demonstrate that you’ve been using those things long enough for those to be trademarked. For example, there are very few trademarks in the fashion industry. However, the red sole of a Christian Louboutin shoe, which a lot of people might recognize, is actually trademarked. And so you know that if you get a red sole and it’s not purchased off Canal Street (wink), you know that they’re the only brand that’s able to use that.
They’ve been able to show that they do such a good job of making sure all of their shoes have a distinct look. The red sole has nothing to do with the function of the shoe. It’s totally for fun. That’s why they’re able to use that packaging and to monitor, enforce, and keep other people from putting red soles on their shoes and trying to make them look similar.
Tiffany & Co.
The same idea applies to Tiffany blue. That iconic Robin’s egg blue color is a trademark color owned by Tiffany & Co. So if you’re starting a jewelry company, be more creative with your color scheme and your Pantone colors. Please don’t use that color.
Another example is In-n-Out restaurants. There are distinctive elements behind the actual look and feel of the restaurants – from the tools the wait staff uses, to the employees and the red and yellow coloring. They have several trademarks that protect the look and feel of In and Out.
Now what sets In-n-Out apart? They’ve been in business for a long time. They have a good healthy budget, and they were able to show and develop those trademarks and that intellectual property portfolio. In-n-Out was able to show that they’ve done such a good job in making people have almost like a Pavlov’s dog reaction. They see this object and they know it’s In-n-Out immediately. No one else should be able to use that. It would be cheating and it would be dishonest and confusing to consumers for other people to have this distinctive look and feel of packaging.
And that’s really when it comes down to with trademarks: what you should always be thinking about. Which brand comes to mind when you see a logo or a color scheme? Trademark laws are actually for the benefit of consumers, not brands. They are there to minimize confusion. However, brands absolutely use trademarks strategically to protect and develop their ideas and their properties, and to be able to license those and monetize them.
Trademarks Protect Consumers
I have filed close to 300 trademarks, helping clients do exactly that. The reason why we protect trademarks in the U.S. the way that we do is to protect consumers. It’s unfair for a consumer to buy what they thought was a brand-name product and instead get duped. And so if companies can establish that they made a product, we should be able to let them be the only ones who can use that trademark. And that includes the product name, logo, look with packaging, or even the shape of a bottle (Coca-Cola has a trademark on that).
That means that when you reach for that bottle, you know that you’re getting the real thing from this company and people aren’t allowed to make copycats and dupes of it. Trademarks can be super helpful, especially now in our digital world of SEO.
One of the most important things you want to have as part of your marketing goal is that if someone hears about your product, they can find you again.
Help the Consumer Find You Easily
If someone has a positive experience, they will look you up on social media, YouTube, Google, or Pinterest. You want to make sure that the people who are interested can find you (the real you) and not something else. And that’s why trademarks are those all-important signals, identifiers, and source indicators of goods and services. That is the power of trademark.
It’s something that I love helping clients with and walking them through. It’s really important in the process that we do trademark searches, which is to make sure that we’re not stepping on someone else’s toes. And then we are getting those trademarks secured for ourselves and locking out that real estate so that we can build a good empire there.
Do Your Research
You certainly want to do this before you start investing a lot of time and money into branding, build a beautiful new shiny website, or get into licensing deals. If you’re getting into bigger projects where you’re going to be using your trademark with other people and other players, you want to make sure this is all taken care of.
Be sure that you’re looking into trademark protection first, and that you’re working with a reputable and competent attorney to help you through this process. There are a lot of online gimmicks that will try to sell you trademarks and claim that they can help you file for a nominal fee. All those websites and services are doing is taking down your information and just filling out a form on your behalf. You could do that. They’re not going to tell you that the trademark has no chance of being filed, that it’s descriptive, or that you’re submitting bad proof.
Because trademarks are taking about a year right now (in terms of their turnaround time at the U.S. Patent and Trade Office), you want to have confidence that you can move forward. You likely don’t have a year to wait to see if this name is even something that you can or should be using, or if you need to be looking over your shoulder at every turn for that cease and desist order to come down from someone else who’s super mad that you’re using their branding.
Licensing – the nature of taking your copyright and trademarks that you have and auditing : What have you created? What’s the value in there? Then you need to decide how you are going to let other people use your products.
What are the rules? How are they allowed to use your trademarks, names, product names, the intellectual property, business goodwill, and that brand that you’ve established? You need to come up with a plan for how that’s going to work, how royalties are going to be split, and how you’re going to make revenue. This is called licensing. It’s governed by written licensing contracts. I love helping people establish and set up those schemes and making sure all those pieces work together so that everyone’s happy. We want to have really good deals where everybody wins.
Tool #3: Contracts
Let’s talk about our third tool in our intellectual property tool chest: contracts. This might be not one that you normally think of as contracts being an IP tool. It’s certainly, doesn’t sound as sexy as copyright, trademarks, and patents. There are some rules, especially in copyright law, that say that if you transfer or assign (meaning we’re moving around a copyright) it needs to be in writing.
This is a good reminder to make sure that we have our agreements with other people in writing and we’re not just having conversations. People can misremember conversations. But writing doesn’t lie. Writing shows up for us. 10 times out of 10 it’s there. We can show that we had clear consent and agreement on both sides of what the deal was going to look like.
Our most common contracts would be nondisclosure agreements (NDAs), which help protect confidential information and trade secrets. Contracts could also include copyright assignments or licensing agreements. These govern what the property is going to be, what it looks like, who gets to use it for how long, and how money will be divided. They lay out what the rules are, and what you can and cannot do with their property. This all needs to be spelled out in writing.
Tool #4: Patents
Last but not least is patents. Patents are really important and they’re certainly useful if you are innovating and creating new or novel physical products. However, I am not a patent lawyer. And I don’t know if you knew this (but now you do!), patent lawyers actually have to pass an entirely separate bar called the patent bar and they have to have a science background. So they either need to have industry experience in science or a technical field, or have majored in a science in college. Neither of those applies to me. I don’t do patents, but I have some lovely colleagues that do. If you need some patent recommendations or want for more information, reach out to me. Instagram is usually the best place to get ahold of me. I could send you the names of some people who can help if you have patent questions.
Patents are great and awesome, but they’re also time consuming and expensive. So there’s something to, to look at and also maybe to budget and work toward as you earn more revenue and move along in your process.
How to be a Responsible Business Owner
What should you be doing as a business owner? We’ve talked about what we should do to protect our own stuff and make sure like people are not going to be riding on our coattails and taking advantage of our stuff. But what should you be doing to be a good steward or a good creator?
You need to make sure that you’re not the one stealing or taking stuff that you’re not supposed to. This is super important as a person who’s part of the digital creative economy (which almost all business owners are). Isn’t that the joke in the Instagram Reel? “I’m a small business owner. So I guess that makes me a content creator.” I’m hard pressed to see any of my clients (who are all small business owners), who aren’t creating some sort of content.
You probably are involved in content creation at some point, even if it’s just for marketing purposes. Maybe that’s your main industry and how you make money. Wherever you fall on that spectrum, let’s make sure we understand what we should be doing as a business owner.
Business Owner Etiquette Tip #1: Clean Sourcing Process
First, make sure that you are sourcing and tracking your process for creating content. Be aware of where the ideas that you’re creating came from. This means making sure you look at a wide view of influences and then you close them down and you create your work. This is especially important for visual artists, graphic designers, illustrators, or surface pattern designers. These are all people who might be looking at reference photographs.
I get asked this question a lot: “How close is too close?” And those are really fact dependent, gray, depends-on-the-lawyer answers. The best guidance I can give you is to look and make sure that you are being careful about what you’re viewing and taking in. The best way to have good original work is to go from a wide variety of influences. Look to fashion, art, architecture, music, and nature. Get outside your office. Close down Pinterest and Google image search.
Make sure that you’re not getting siloed into just consuming content that looks like what you’re going to create. The odds are the more you silo and become an echo chamber in your content creation, the more likely your stuff is not going to be original.
You’re also getting closer to blurring those ethical and legal lines and stepping over those where you’re creating. Then you’re copying someone else and we don’t want that. We want you to create your best and most original work. So make sure keep an eye on your process. Edit as you need to.
Business Owner Etiquette Tip #2: Get It in Writing
Get everything in writing. You need contracts. That means you need permissions. You need media releases from people if you’re using their likeness. If they’re going to be in photo or video, and you’re going to be able to see their face or hear their voice, that means you need media releases. They have the rights to that.
Part of that is publicity rights and getting into that area of law and part of it is intellectual property. The biggest thing is just to remember that anything dealing with intellectual property, agreements, and promises needs to be in writing. They need to be in writing. Get it in writing, please and thank you.
Business Owner Etiquette Tip #3: Giving Credit Is Not Enough
Number three is a big one. Giving credit isn’t enough to negate copyright infringement. Let me say that again. Giving credit does not cross out copyright infringement. I mean that if you are on social media and you see something awesome and you want to share it, you are fine if you use an in-app feature, like using the little airplane and sharing that to your Instagram story feed, for example.
What’s not okay is when you see a great picture or original illustration and intend to use it without permission. Say it’s International Women’s Day and you find an image you like. You want to put it on your Instagram post, website, on a bag, or a t-shirt. If you think, “Oh, I’ll just tag the artist. We’ll give them credit. I’m not going to try to steal or claim it’s mine. I’ll just tag them on the post.”
You’re Not in School Anymore
No, this is not okay. Giving credit was okay in school when you were writing a paper. You’re not in school anymore. You’re running a business. You need to have a business CEO hat on. And that means if you didn’t create it, you don’t have the rights to it. And if you want to use it and you didn’t create it, you need to get those rights in writing.
An email or a DM is better than nothing. A contract is ideal. It’s the best practice. That means if you want to use something, before you repost, screenshot, or screen record, a little flag should go up in your head reminding you to wait a second. Do you have permission to use this? Especially make sure you’re not embedding it on your website, social media, a product (especially a digital product), an online course, or a membership.
You can always link out. You can link out all the live long day, no problems there. But embedding it and having it framed into on your website on your server is another story. There’s a whole legal technology doctrine behind. That could be very problematic for you. Just giving credit isn’t enough. Get permission. Permission is enough. Permission is best.
Business Owner Etiquette Tip #4: Fair Use
Tip number four is about fair use. Fair use is tricky. And people think that they should have fair use to use a clip, video, music, photograph, or other piece of work. That should be enough. Fair use is a defense. It’s a defense against copyright infringement. It doesn’t make it okay, which means that it’s tricky and nuanced.
You may not be sure that you will ever really have fair use. You should be skeptical of anyone who tells you that it’s a slam dunk fair use. Fair use is tricky. And you normally need to hire an intellectual property attorney who works specifically in this area. And even then, they will probably give you a weighted risk or spectrum of risks. They probably won’t even be able to give you a fair answer because the case law is so all over the place. And it’s very hard to decide what’s fair use and what’s not.
I will tell you overall, if you are using it for business purposes, commercial purposes, it’s highly unlikely that you get fair use. If you’re in education, you get a lot more benefit of the doubt. But once you start making money from it, the rules change. And that’s for your protection too.
The Rules Can Change
Remember you’re playing part of this game, but the rules change and you need to be aware of that. I think of it’s a little bit like, “Do you even know what a plethora is?” (Three Amigos!). Do you even know what fair use is? If you’re not sure about it, please err on the side of caution. Don’t use it, embed it, put it in your product, website, blog post, or email.
This is especially important for my creators who might be coming from other fields where you got more fair use than this. I see this happen a lot for people who are teachers, who we know have side hustles, who are now involved in teaching their own curriculum. So this applies to coaches, authors, thought leaders, teachers, and hustlers.
Make sure that if you’re creating your own curriculum, you need to have much higher standards of where that content came from. Where do those graphics come from? Do you have a license to use those for commercial purposes? Who created them, drew them, put the logos together, and wrote the material? All of those things need to be really clear. You need to answer all of those questions before you start selling it.
Business Owner Etiquette Tip #5: Be A Good Steward
Be a good creator, be a good steward, be a good educator in this area. That means that you should start from a place of civility and giving the benefit of the doubt. When you see stuff go wrong or you see someone using your your content, assume they’re not trying to screw you. They just don’t know. It’s a benevolent ignorance. This can be super hard and I know it can feel like a sucker punch.
I’ve dealt with many of these crisis management situations. I’ve helped clients and creators, especially when they get copying and stuff gets taken care of. Just remember, sometimes people just don’t know and it’s an opportunity for you to educate them. Send them here! You can say, “Hey, you need to be following Brittany Ratelle and watching and reading her stuff. She’ll help you understand intellectual property law and what can and cannot be protected.”
Let it Go
There’s a lot of stuff we have to let go of too. We need to understand that we live in a digital world. Sometimes we just have to get over it. You’re not that special. Everything is a remix of something else.
It’s probably not a matter of if, but when someone is going to copy your work. Make sure to take a deep breath and think about what you want to happen. Formulate a plan, go vent to someone else offline. Note what I said: offline. Don’t assume that someone is maliciously coming after you and your first born child and everything you hold dear.
Karma is real – don’t steal!
Be a good steward. Be a good creative and creator, especially if you are creating content. Then respect other people’s content. Especially respect people who create photos and don’t steal their photos. Respect people’s music and don’t take their music if you don’t have a license to use that music.
Respect creativity and the art of that, because it’s what allows us to have this beautiful, vibrant world that allows people to monetize and be supported financially from their work and the great things they’re putting out there. They are solving problems in the beautiful art that they’re bringing to the world. Be a good part of that. And be the change you want to see in the world.
Thanks so much for joining me here today. This blog post and corresponding video are part of a foundational series that I have created about getting your business legally legit and protected. If you haven’t checked out the other videos, I talk about setting up your LLC vs. sole proprietorship and how to draft and review contracts (if you don’t have a lawyer to help you out). We also talk about how to make sure that your business doesn’t look like a hobby and it looks legit and that you’re able to move forward with confidence.
I’m Brittany Ratelle, an attorney for you, modern online business owner. And I’m so happy that you could join me here today. Make sure to like and subscribe to my YouTube channel and watch the other videos on the channel. You can also and connect with me on Instagram. That’s where I like to hang out. So if you want to connect with me, tell me what you’re liking and jiving with. I’d love to connect with you on there.
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