Why Arizona Small Businesses Should Get Trademarks or Copyrights

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As a small business owner, you have probably heard the words “copyright” and “trademark” before. The question is: does your business need a copyright or trademark?

Businesses have many types of assets, some tangible and others intangible. Some of the intangible assets of a business are its intellectual property, which includes the company name and logo that establishes its brand, slogans or theme songs, and marketing materials (posters, digital advertisements, social media postings, publications, etc.). Obtaining protection for these types of assets may be necessary for the very success of a business. The easiest way to protect these assets is through trademarks and copyrights.

Basis of and Purpose of Trademarks

Trademarks are most often associated with company names or logos. The basis for trademark law comes from the Commerce Clause of the Constitution, which states, “The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Congress has promulgated Title 15 of the United States Code Service to regulate commerce through the protection of the trademarks.

15 USC Section 1127 defines a trademark as “any word, name, symbol, or device…used by a person, or…a bona fide intent to use in commerce…to identify and distinguish his or her goods [or services]…and to indicate the source of the goods [or services].” What is important to note here is that protection is only available when the mark is used in commerce; protection comes with use.  

Basis of and Purpose of Copyrights

When people hear the word “copyright,” they may first think of books or pamphlets, but there are many other things that copyrights can protect.

The basis of copyright right law, as well as patent law, stems from Article 1 Section 8 of the Constitution, which states, “The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” (emphasis added).

As such, congress enacted Title 17 of the United States Code Service, which states that copyright protection includes “original works of authorship fixed in a tangible medium of expression,” including literary, musical, dramatic, choreographic, pictorial, graphic, and sculptural works, as well as motion pictures, sound recordings, and architectural works. See 17 USC § 102(a).

In short, copyright protection requires an original work of the listed categories (but not necessarily limited to those categories) fixed in some sort of tangible medium (i.e. written down, recorded digitally, etc.). Section 102(b) of Title 17 states that copyright protection does not extend to ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries, regardless of how it may be described, explained illustrated, or embodied.

Advantages of Registration

While registration for both trademarks and copyrights are permissive, certain rights and protections are forfeited, or the owner may have less rights available to them if they have not registered their intellectual property.

A registered trademark provides constructive notice to the whole United States of the registrant’s claim of ownership. See 15 USC § 1072. Also, registration of a trademark establishes prima facie evidence of the validity of the trademark, the ownership of the trademark, and the exclusive rights in the use of the trademark.

See a5 USC § 1115(a). Further, a registered trademark can achieve a level of incontestability in which the validity, ownership, and exclusive right to use the trademark cannot be contested, and registration acts as conclusive evidence of those rights. See USC § 1115(b).

For copyrights, one of the biggest advantages of registering a copyright is the owner’s ability to seek enforcement against infringement. 17 USC § 411 states that, subject to certain limitations, “no civil action for infringement of the copyright in any United States work shall be instituted until pre-registration or registration of the copyright has been made…”

Considerations

There are, of course, many considerations and factors that go into the determination of the ability to register a trademark or a copyright, which would be impossible to cover in a single blog post.

Years of case law and many statutory provisions have evolved and determined the requirements of these protections. In general, trademarks must be distinct, non-functional, and used in commerce. Copyrights must be original works of authorship, minimally creative, fixed in a tangible medium, and included in one of the listed statutory categories (and not excluded by the statutes).

Arizona Businesses Should Seek Registration

While the only disadvantages of registering a trademark or a copyright may be the cost and time in doing so, it makes all the sense in the world for business owners to seek registration for their IP, including trademarks and copyrights.

Our attorneys are ready to aid Arizona business owners to determine the registerability of their trademarks and copyrights and help them through that process. As such, we are ready to help business owners to achieve as many rights in that property as possible and begin to thoroughly protect the property that often sets them apart and determines the success of their companies.

Contact Counxel Legal Firm

We look forward to helping you get the copyright and trademark protection that you need. Contact us at (480) 744-6621 or at request@counxel.com. Don’t forget to check out the good things that others are saying about the services they received from Timothy Coons on Google.

This article is intended for informational purposes only and does not constitute legal advice for your specific situation. Use of and access to this article does not create an attorney-client relationship between you and Counxel Legal Firm. Please contact request@counxel.com or (480) 744-6621 to request specific information for your situation.

*Conveniently located off the 101 Freeway and the US 60 in the middle of Phoenix, Scottsdale, Tempe, Chandler, Gilbert, Mesa, and Queen Creek!

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