Each week as Smallbizlady, I conduct interviews with small business experts on my weekly Twitter talk show #SmallBizChat. This is excerpted from my #SmallBizChat interview with Aurelia Mitchell Durant @brandprotectors Aurelia is an Intellectual Property Attorney specializing in Copyright and Trademark Protection. She is committed to guiding business owners on how to own their brand. She has over a decade of experience and is a skilled and insightful speaker on the topic of brand protection. For more information http://www.ismybrandprotected.com
Smallbizlady: What is Intellectual Property?
Aurelia Mitchell Durant: Intellectual Property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. The term intellectual property applies to all creative work or original thought.
Smallbizlady: What is a trademark?
Aurelia Mitchell Durant: A trademark or service mark is a name, logo or combination of words, and a tagline that is recognized as identifying a particular supplier of goods or services. You see Trademarks every day: McDonalds®, Kodak®, Levis®, etc. When you see them, you know who the goods or services come from. Trademarks are valuable commodities and may be sold, transferred or licensed to others for their limited use.
Smallbizlady: What is a service mark?
Aurelia Mitchell Durant: A Service Mark is a trademark applied to services as opposed to goods. Typically, the term trademark is applied to both good and services.
Smallbizlady: What is a copyright and how long does the protection last?
Aurelia Mitchell Durant: Copyright, or the right to make copies, is protection for artistic expression set into a tangible form. Artistic expression includes such things as written words (books, magazines, signs, and poems), music (both the words and lyrics, and also the performance when recorded), and works of visual art, motion pictures, and computer software. Basic copyright protections last until 70 years as after the creator’s death. Works created under the direction of a company last either 95 years from the date the work was published or 120 years from the date the work was created, whichever is shorter.
Smallbizlady: What is a “Poor Man’s “Copyright?
Aurelia Mitchell Durant: A poor man’s copyright is created by mailing your work to yourself in a sealed envelope via the US mail instead of registering the copyright. However, this practice is discouraged because there are ways to “fake” as poor man’s copyright.
Smallbizlady: Why should a small business owner register their trademark?
Aurelia Mitchell Durant: Registering your trademark provides you with rights throughout the United States for the use of the trademark for the use specified in your registration. Trademark registration is the legal protection and security of your business brand. It is important to own your brand!
Smallbizlady: The name of my company was approved when I incorporated – doesn’t that mean I am free to use that name as a trademark?
Aurelia Mitchell Durant: Incorporation is NOT the same as trademark registration. Incorporation a business name does not provide the business owner with a registered trademark. The benefits to incorporating are vastly difference from trademark benefits. In fact, the business name and the trade name in most cases are not the same. For example, Mattel is a business name, Barbie is a trade name.
Smallbizlady: What is copyright infringement?
Aurelia Mitchell Durant: Infringement is when a registered trademark issued by someone else without expressed permission of a license. Infringement is serious business! The standard on review is whether there is a likelihood of confusion.
Smallbizlady: How can an IP attorney add in the process of registering a trademark?
Aurelia Mitchell Durant: An attorney will search the trademark registers for you to make sure that YOU are not infringing on the trademark of another business. Even unintentional infringement is infringement. You could be sued and issued a cease and desist order forbidding you from operating your business under the name or logo in question.
Smallbizlady: Can I file my own Trademark Registration?
Aurelia Mitchell Durant: Sure. It’s possible to apply for a trademark without the assistance of counsel. However, the rules for filing a trademark application are somewhat complicated. The examining attorneys at the U.S. Patent & Trademark Office (USPTO) may require disclaimer of parts of the mark. This can often be confusing, but can readily be handled by your trademark attorney.
Smallbizlady: I’ve seen small business spend lots of money getting brands registered prematurely, before they really know if their business is viable. When do you suggest a small business owner register their brand?
Aurelia Mitchell Durant: The brand should be registered before the marketing materials are produced. The brand name needs to be available and adequately protected, if the name is not available for trademark, the marketing efforts could be a waste for the business owner.
Smallbizlady: How can a small business owner maintain a trademark registration?
Aurelia Mitchell Durant: Trademark registration can last indefinitely as long as it is officially registered with the United States Patent & Trademark Office (USPTO). The owner of a trademark must maintain active use of it for the goods and/or services it was registered to cover, as they were outlined in the previously submitted filings to the USPTO office. The owner must also continually renew and update the trademark registration by periodically filing Affidavits of Continued Use or Excusable Nonuse and Applications for Renewal.
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