The Game Lawyer Blog

How to copyright a brand name?

You’ve created a new brand for your products and, understandably, you want to protect it. So you look to getting a copyright registration for your brand name. Unfortunately, “how to copyright a brand name” is not the correct question to be asking. This post will clear up this misconception and set you straight!

Can you copyright a brand name?

No. Copyright doesn’t protect brand names!

What is “how to copyright a brand name” the wrong question to ask?

Let’s start at the beginning: “intellectual property” basically means “creations of the mind” that have rights and protection under the law. There are four types of intellectual property:

  1. Patents
  2. Trademarks
  3. Copyrights
  4. Trade Secrets

Copyright is a type of intellectual property that protects “original works of authorship.” When you have copyright rights, you have the exclusive right to make copies, make derivative works, publicly perform, and do many other things.

What kind of things have copyright protection? Copyright protects creative expression like photographs, drawings, writing, poems, dance choreography, sculpture, and software code.

Notice something missing there?

What DOESN’T copyright protect?

Missing in that list above is “brand names.” That’s because brand names aren’t protected by copyright law.

For protecting a brand name, you need to look at trademark law. Trademark, basically, protects brand names and “source identifiers,” so that consumers know the source of the goods and services they’re buying.

There are two reasons for having your trademark protected by the law:

  1. Protect consumers from getting things they weren’t expecting; and
  2. Protect companies from unfair competition from other companies stealing their brand names and the goodwill associated with them

This is why I say that “how to copyright a brand name?” is the wrong question to ask. For the reasons I just pointed out, the government and the courts are very willing to protect your legitimate trademarks. Let’s find out how to do it.

Getting trademark protection

Technically, you have so-called “common law” trademark protection as soon as you start using a brand name to sell your goods or services. However, there isn’t a whole lot you can do with it.

Without registering your trademark, you will have a more difficult time enforcing it. A trademark registration

How do you register? This is done by filing a form through the USPTO’s website. However, the process is a tricky one. It requires a few steps, each one full of potential pitfalls.

  1. Clearance search to determine whether there are competitors out there with too-similar trademarks
  2. Figuring out the perfect description of goods or services, that gives you the broadest protection possible based on your use of the trademark
  3. Filing the initial trademark application and paying the fee (from $225 per class of goods and services)
  4. Responding to any refusals to register

Your application can be refused for a number of reasons. These can include a mistake on the application, another existing trademark that’s too similar, a claim that your trademark is generic or simply describes the goods or services, or many other reasons.

Knowing how to respond to these refusals is where having an attorney at your side can really help. Often, the attorney can avoid these refusals entirely, in a number of ways:

  1. doing a proper clearance search and making sure there are no obvious conflicts
  2. making sure there aren’t any errors in the application
  3. making sure that the evidence provided is sufficient
  4. otherwise ensuring that the whole application is done correctly

This can save time and money. If you make a mistake on the application, you could end up wasting the filing fees and having to start over. You could also potentially damage your rights by filing too narrow of an application. I can’t suggest it enough – get a professional to help you file the application.

How to copyright a brand name?

How long does it take?

Unfortunately, the trademark registration process isn’t very fast.

It can be three months before the USPTO even starts looking at your application and assigns it to an examining attorney. In total, the trademark registration process takes anywhere from 9-12 months, if everything goes smoothly. If there are office action refusals by the examiner, this can take even longer.

However, rest assured that your date of priority against competitors will be either your date of first use in commerce or your date of application. So even though the process is long, your start date remains the same.

What if you’re not using the brand name yet?

Luckily, the USPTO allows you to “reserve” your brand name through the use of an “intent to use” trademark application. If you have a bona fide intent to use the mark, you can get a priority date on the day you file the application. Then, once it’s approved, you have six months to file evidence that you’re using it.

In all, you’ll have about a year to 15 months to file that evidence. If you need more time, you can file for subsequent 6-month extensions, though each of them costs a $125 filing fee.

Protecting your brand name

Hopefully this article was helpful in explaining how trademark, not copyright, is the right way to go to protect your brand name. To get started on the application process, why not contact a trademark lawyer and set up a free consultation? Let’s work together to protect your new brand name!

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California game lawyer focused on providing end-to-end legal protection and legal services for video game and board game developers, as well as software and mobile app developers.
California game lawyer focused on providing end-to-end legal protection and legal services for video game and board game developers, as well as software and mobile app developers.
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