Protecting Your Brand With Trademark, Patent and Copyright Law

In a recent virtual training video, learn more about how these three related laws differ and how you can use each one to protect your business interests

Protecting Your Brand With Trademark, Patent and Copyright Law

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Your company’s trademark is its brand name. You’ve worked hard to establish your brand, so how can you protect it from infringement?

Gary Lambert is the founder and managing partner at Lambert Shortell & Connaughton and has a long history of obtaining and protecting registered trademarks for a diverse range of clients. In a recent virtual training video, Lambert discusses how businesses and individuals in the water and wastewater industries can protect their proprietary goods and services.

Trademarks

A trademark can be any word, name, symbol, device or combination used to describe and identify the goods and services of one seller or provider from those of others. The term service mark is often used to describe and identify a service separate from goods, but the two can be used interchangeably. 

Once you decide on your trademark, the next step in protecting it is through registration. You may have noticed a common mark (®) following a name or product logo. This is the symbol of a registered trademark. Do note, it is unlawful to use that symbol with your trademark prior to approved registration. 

The TM symbol () represents common law trademark and shows that a company has trademark rights but has not registered it. In the U.S., parties are not required to register their marks to obtain protectable rights, though a registered trademark will be much more secure if infringement accusations ever arise. 

When looking at existing registered trademarks that involve wastewater, there are certain points to pay attention to when determining if you are infringing on an existing mark or if someone is infringing on yours.  

The registration date is important because the examiner and the patent and trademark office can only deal with who filed first. The next thing listed will be the international class. This number is one of 45 classes that defines a category that the trademark or service mark falls into. Following the international class will be the first use.

“First use is everything in trademark,” Lambert says. “It dictates everything in the end. When the smoke clears, what matters is first use.”

If there is likelihood of confusion down the road or controversy from another business or individual about competing trademarks, the battle comes down to who used it first.  

“Likelihood of confusion” is also important and is the most common reason a registration request is denied. Likelihood of confusion only exists when the marks are similar, and the goods or services of the parties are related such that consumers would mistakenly believe they come from the same source. 

The trademark office lists a number of examples of what makes trademarks similar. Sound can make a mark similar. Even if it is spelled differently but sounds similar when spoken, the trademark office will consider them too similar to register. Appearance of the brand name or logo is another more obvious factor considered. One that is maybe not as obvious but recognized by the trademark office is the meaning of a certain phrase or word. Lambert gives the example of the word “lupo.” Lupo would be denied if a similar company had already registered the trademark “wolf,” because lupo means wolf in Italian. Other grounds for refusal include using largely only a surname or geographically descriptive origin of goods or service. 

Something else you may want to consider is trade dress. This refers to the total image or overall appearance of something. It may include size, shape, color, color combinations, texture, graphics or even certain sales techniques. Trade dress can be registered but it must be distinctive and cannot be a functional characteristic of the good or service.

Patents

Patents are different than trademarks and summarized as the right to exclude others from making, using, offering for sale or selling an invention in the U.S.

“A patent does not make you money, it prevents other people from making money,” Lambert says. “Now you might make money by preventing others from making it, but a patent by itself isn’t going to write you a check.” 

There are two types of patents that apply to the wastewater industry: a utility patent and design patent. Utility patents protect any new and useful process, machine, article of manufacture, composition of matter, or any new and useful improvement. A design patent protects a new, original or ornamental design for an article or manufacture. 

In order to receive a patent on a design or utility, the invention must be completely novel. This is very strict and means that a patent cannot be obtained if the invention was already patented, described in a printed publication, in public use, on sale or otherwise available to the public before the patent claim’s filing date.

Copyrights

In addition to trademarks and patents, there are copyrights. A copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression covering both published and unpublished work. Copyrights can protect any works of authorship such as literary or artistic works, computer software and architecture. It does not uphold facts, ideas, systems or methods of operation. 

Knowing which protective measure applies to you and your brand name will help ensure the longevity of your property. Don’t be afraid to seek the guidance of a trademark lawyer to make the process smoother and to ensure you are getting the proper registration.



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