Trademarks for Copyright Aficionados

The internet is filled with people who create copyrightable content, from blog posts like this one to YouTube videos to photographs. Many of the people who create content on the internet are familiar with good old copyright law, which seems so easy and straightforward (protip: it isn’t, but it’s good at pretending). On first approach, we expect trademark law to be the same: basically just copyright law with a business suit on.

It isn’t. Trademark law has a completely different goal and intent. Let me lay out the basics in a handy comparison chart, and then I’ll get to the hard stuff.

Readers Digest Version: Trademark law isn’t like copyright law. Copyright law protects the creator / owner. Trademark law protects the consumer / buyer. When trying to decide if something infringes or not, copyright asks, “Oh, is it similar to John Doe’s work?”. Trademark asks, “Would consumers think that this product comes from that source?”.

Okay, so that’s the easy part. Now we have to look at the really difficult part – the stuff that always throws people about trademarks.

When you create a work of authorship, like a painting, that work is covered. Full stop. It doesn’t matter what state you live in. It doesn’t matter whether you’re using that painting for your awesome lolcat website or for your grandmother’s birthday present. It’s covered.

When you create a brand name, a logo, a symbol, or any other mark, it matters how and where you choose to use that mark. If I create the “WhoaToes” brand of fuzzy socks and I am the first person to sell fuzzy socks under the name “WhoaToes,” I will immediately have a trademark for “WhoaToes” in my geographical area. I can register “WhoaToes” with the Trademark Office, and then I will have the right to use the mark nationwide. So that’s the where part.

The how part is more confusing. When I register my trademark, I have to indicate what kind of goods I intend to protect. I’m selling fuzzy socks. This means that when I register my trademark, I can register “WhoaToes” in clothing, and I can keep people from using that mark for clothing. So I could stop someone from making some awesome “WhoaToes” sweaters. However, if I’ve only claimed my mark in the clothing class of goods, I can’t stop someone from making “WhoaToes” potatoes or “WhoaToes” toys. I also can’t prevent non-commercial uses…

Except (you had to know there would be an except). I can prevent certain uses that harm the distinctiveness or the reputation of my brand. If my brand is famous, I get some extra protections on it: once practically everybody knows what WhoaToes is, I can stop people from making products in different classes. Basically, I can stop other people from cashing in on my famous mark, because if I don’t, then consumers won’t be able to tell what goods are really endorsed by WhoaToes and what goods are just some random person trying to ride my fuzzy WhoaToes coattails. After a while, consumers might just stop trusting the WhoaToes name, and that would be bad.

These are the basics. Of course, I am summarizing, and I am leaving a lot out (and some of the things I’ve left out are pretty important). If you have specific questions about getting trademark protection for your brand or logo, please talk to an attorney.


Side note: The chart above is CC0 public domain, to the extent of applicable law. Have at. I’d love a link back if you feel like it, but I don’t require it.

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