THE VALUE OF OWNING A COPYRIGHT REGISTRATION

With a long history of providing protection in created works in our country, more recent times have shown that litigation against Copyright infringement is on the rise. For Creatives, filing for a Copyright may seem like a nonessential expense, but the following are reasons we strongly recommend setting up your creative work with the best defense possible. 

WHAT DOES COPYRIGHT PROTECT?

Copyright is unique from Patents, or Trademarks, because copyright exists the moment the creator gives tangible or digital form to their creative work. A few examples of created work include photos, music, art, books, computer code, and drawings. In other words, Copyright does not apply to mere ideas. Copyright provides rights in the work belonging to the owner, and the right to pursue a defense against usage by others from copying, or substantially copying, the work without permission.   

WHY DO I NEED A COPYRIGHT REGISTRATION?

Copyright owners may wonder why obtaining a Copyright registration is valuable, if the work is protected automatically upon creation. There are a number of reasons that registration is strongly encouraged; the primary reason being to enable enforcement against infringement of your work. The Copyright registration allows the owner to file a lawsuit against infringers. Other reasons to own Copyright registration include the ability to request statutory damages in a lawsuit, and to show prima facie evidence that you are the owner of the Copyright.

WHAT IS THE DIFFERENCE BETWEEN COPYRIGHT AND TRADEMARK?

The key difference between a Copyright and Trademark is that a Copyright protects the creative work, whereas the Trademark protects the name, brand, or logo of the creative work. At times, it may be advisable to file for both Copyright and Trademark registrations. We recommend seeking legal counsel to advice you on how best to protect your creation.

Please reach out to Behrends Legal to find out more about Copyright registration and how we can help you protect your work! 970-578-9455.

Are You Culpable for Trademark Infringement?

If you advertise, post, share, compare, promote, or influence products or services, this question may be at the forefront of your legal concerns. The progression of social media as a prominent marketplace and advertising medium has created new concerns regarding the legalities of trademark protection and trademark infringement.

Should I be worried about using trademarks that don’t belong to me in my advertising and posting?

As is so often the answer – it depends on your intentions. Using a Trademark owned by someone else for the purpose of deceiving consumers into thinking your product is created by the same source as another brand is infringement of the trademark owner’s rights, and is prohibited. However, there are a limited set of circumstances where using a Trademark belonging to another person/entity is not considered infringement.

How Can I Use the Trademarks of Others Without Infringing Their Trademark Rights?

Under the Lanham Act[1], the circumstances in which someone may use another’s Trademark, are called Nominative Use, of Fair Use, and include:

         1.Comparitive advertising that is an opinion, such as ‘Brand A is better than Brand Z’.

         2. Compatible use is allowed when a product is shown to be compatible or functional with another product, such as demonstrating that a cell phone case is compatible with a major brand cell phone.

       3. Other instances where use of another’s Trademark is permitted include legitimate sponsorship by the other brand (often permitted through contract agreement), and when the use is for parody (caution is still strongly recommended).

In nominative use cases, the law is concerned with avoiding consumer confusion by giving credit to the brand that invested in the original Trademark, and by properly attributing the source of the goods or services through identification, and often, permission to use the mark.   

In nominative use cases, the law is concerned with avoiding consumer confusion by giving credit to the brand that invested in the original Trademark, and properly attributing the source of the goods through identification.

When In Doubt, Obtain Permission

If you find your intended usage falls into a grey area, or doesn’t fit neatly into one of the categories above, err on the side of caution and obtain permission to use the mark. At Behrends Legal, we are big believers in preventative law, or taking action now, to prevent or limit the potential for litigation later, before acting or posting is a wise move.

Please feel free to reach out to us at Behrends Legal to make a plan to protect your business as you advertise your brand!

This is a post about common trademark concerns and should not to be taken as legal advice. Nor does the reading of this post create an attorney-client relationship. If you have legal questions, please reach out to us at Behrends Legal today for a consultation.

P: 970-578-9455

E: rachel@behrendslegal.com


[1] See 15 USC 1125 (c)(3) Fair Use Doctrine

To The Small Business Owners

This year has been a challenge unlike any other year for American businesses with unexpected closures lasting for uncertain lengths of time, fluctuating regulations, and the unknowns awaiting for business this year. Small businesses are the backbone of America, however, where the spirit of American entrepreneurship is borne and resides – that venture risk that requires the entrepreneur to be part organizer, part rebel, and 200% hard worker. A 2019 study showed that U.S. Small Businesses make up a sturdy 55% of the American Workforce, with a total of over 30 Billion small businesses registered in the U.S.[1] That’s no small number. Of those small businesses, 3.7 million were considered microbusinesses, or those that employ 10 people or less.

With small businesses being the wheels of the economy and innovation in our country, the work and contribution small businesses make should never be taken for granted. It is your business that keeps your community employed, your business that meets the need for the goods and services in demand by consumers, and your business that keeps an economy moving forward even under the hardship of a pandemic. Press on, Entrepreneurs, and keep the following in mind:

PLAN TO ADAPT

As you look to the coming months, possessing the foresight to know what your customers need will align your business to maintain and grow. Set your business up to be fully operational, as much as possible, despite varying regulations that affect in-person transactions.

  • Paperless tools: make it easy for clients to receive, sign, and save your transactional documents securely from their own devices from anywhere.
  • Offer new products: your customer’s needs have changed, to a degree, just as your business needs have changed. Ask/study what your customers need and find creative ways to provide solutions for them.
  • Don’t wait for customers to come to you: with so many store and shoppe closures, find ways to ramp up your delivery to the customers to keep your products in their hands affordably and conveniently.

CREATE BRAND VISIBILITY

More than ever, your online advertising matters. Ecommerce has surged with the temporary closure of so many businesses, and as your business adapts and grows in these new times, your name should be in the forefront of customer’s minds.

  • Trademark your business & product name: ensure that you can protect the reputation for quality you have built, and claim your advertising rights by filing for trademark registration of your products, services, and brand.
  • Promote your brand name: if you aren’t already investing in online advertising, now is the time to begin. If you already advertise online, find new and creative ways to reach your customers. Be available, and be communicative.

PLAN FOR THE FUTURE WISELY AND WITH OPTIMISM

Continue to plan for the future, even with uncertainties ahead. You may have to deviate significantly from your business plan, or completely write a new business plan, however, keep your goals in mind and continue to work towards them.

  • Know your financials: though it can be a formidable task, know your business numbers well and plan/adjust accordingly.
  • Be a voice of Strength: Find ways to maintain your optimism, surround yourself with positive people, and encourage your employees, staff, and customers.

At Behrends Legal, we look forward to helping you file your trademark, form your business entities, draft the business documents you need, and more, to help you as you prepare to guide and grow your business through the coming months. Stay safe and stay Small Business Strong.


[1] 55 Staggering Small Business Statistics & Facts for 2020https://websitebuilder.org/small-business-statistics/#:~:text=%2055%20Staggering%20Small%20Business%20Statistics%20%26%20Facts,Only%203%25%20use%20their%20home%20equity%2C…%20More%20

What is an Office Action from the USPTO?

One of the most discouraging events of filing for a Trademark is receiving an Office Action letters from the USPTO for refusal to register the trademark. This is also sometimes known as a “2(d) Refusal” for its refusal on the basis of the Trademark Act 2(d). While it is disheartening to receive an Office Action refusing to register your trademark, it often need not be the end of the story.

Determine the Cause for Refusal

When drafting the Office Action, the USPTO Examining Attorney is required to establish the legal basis and foundation for their refusal. Read your Office Action to determine the cause for the refusal. If the Office Action lists information that is incomplete to file the Trademark application, sometimes, all that is needed is for you, the Applicant, to make corrections to your application and fill in the missing basic information. However, sometimes Trademark Applications are rejected via an Office Action 2(d) refusal.

Responding to an Office Action 2d refusal can be more involved, and it is advisable to seek legal counsel. The most common basis for refusal is “likelihood of confusion” with another existing mark. This is generally based on the trademark names, or a similarity between the goods and services of the two trademarks.

While it is disheartening to receive an Office Action refusing to register your trademark, it often need not be the end of the story.

Respond to the Office Action with Legal Arguments and Mind the Deadlines

Filing a response to an Office Action is similar, in some ways, to filing a court appeal. A well-drafted response to the USPTO should include legal arguments that establish the reasons why your mark is unique and can coexist with other existing trademarks on the trademark Principal Register. The Response will also answer all of the Examining Attorney’s arguments. It is crucial to be mindful of the response deadline as failure to respond by the deadline results in the mark being labelled “abandoned” by the USPTO.

Although no one wants to receive an Office Action letter from the USPTO refusing registration of their trademark, there are options available to Applicants to make efforts to overcome the refusal. We can help at Behrends Legal today! Feel free to contact us. Our flat fees keep things simple for you!

We look forward to discussing your Office Action matter, and creating a plan uniquely tailored to you!  

P: 970-578-9455

E: rachel@behrendslegal.com

Differences Between Wills and Revocable Trusts

Although many legal documents can be used to distribute personal and real property assets when the time comes, some of the most common choices are to prepare a will, or a revocable trust. Moving forward in these matters can be emotionally challenging, but you have worked hard to build your estate over the course of your life, and creating an estate directive for your loved ones is one of the most loving things you can do. Your estate plan outlines your goals and wishes so your loved ones don’t have to guess, or go through probate court, or await the court directive.

What is the Difference Between a Will and a Revocable Trust?

            Wills are essentially a listing of personal assets with a directive regarding how the assets should be distributed, and is only effective at the time of death. This may seem similar to a trust initially, however, the Will must be filed with the local probate court, the beneficiaries of the will must pay the court fees to process the Will, and are subject to the timing of the court procedures. Further, the contents of the Will become part of the public record which is undesirable for many grantors who wish to maintain privacy.

            A Revocable Trust is created immediately, and can be added to, or changed during the life of the Grantor (the creator of the Trust). Some grantors prefer to use Trusts in order to provide directives for real property. Revocable Trusts are often preferred by grantors in order to retain privacy of their personal assets as the trust does not need to be processed by probate court. Trusts are administrated by a person of the Grantor’s choosing and designation. Sometimes an attorney will advise the drafting of a Will as part of the Revocable Trust. A Revocable Trust can also help the Grantor create a plan for future medical care if desired, as well.

There are many other benefits to preparing legal asset documents, and having a legal, documented estate plan is the best plan. It is important to create an estate plan that is personal to your situation and goals, with an attorney.

Reach out to Behrends Legal today to discuss your estate planning goals!

P: 970-578-9455

E: info@behrendslegal.com

3 Reasons Why A Trademark is Valuable to Your Business

  1. Convey your message.

Today, brands are known through easily recognizable logos and names by using combinations of colors, words, phrases, and images we are familiar with. This helps people quickly identify who is sharing the message, selling a product, or offering a service. Think about the logos you’ve come to recognize such as that little piece of fruit that identifies a brand of phones, laptops, and other devices. Or the strong green man on the bag of frozen peas, or the happy, dancing pitcher of sugary drink selling a refreshing, fun experience. Logos not only indicate the source of the product or service, but can also evoke emotions from past experience, or memories, that encourage continuous use. Your brand becomes a powerful messenger for the product you are promoting.

2. Your customers recognize quality through your brand.

Your logo and tradename should be consistently used in all your business online advertising, product packaging, and storefront signage. Consistently seeing your brand name and design helps customers associate the quality of your product or service with your brand name.

3. Trademarks are valuable in and of themselves.

Planning for global reach should be part of your modern business plan, no matter how small or humble your business beginnings. The age of the internet, and use of online markets such as Etsy,  Amazon, and others, make products and services available to customers around the world. As your business grows, your brand logo becomes valuable in and of itself as a symbol that customers will look to for consistent quality, and value. When business owners look at the potential for purchasing a business, part of the purchase should include paying value for the brand and logo that identifies the reputation and customer loyalty your business has built.

Put your Trademark protection plan in place by calling Behrends Legal today!

970-578-9455

PROTECT YOUR BRAND

You have spent significant time building your business; don’t let the name and face of your business go unprotected by failing to register your trademark and tradename. Filing your company trademark with your state is a fairly simple process in most cases, whereas filing your trademark federally with the USPTO is more involved. We are here to make this part of your brand building easy for you. We file your trademark for you so can carry on with the business of running your company, and knowing your brand is protected!

PLAN FOR THE FUTURE

Make your own choices about what will happen to your property should something unexpected happen to you. Creating an estate plan is essential to ensure that you direct what happens to your care and your estate, rather than allowing the state to make determinations about your property in the absence of your own wealth plan.

Why We Don’t Recommend Drafting Your Own Will

There is nothing more stressful for family members than finding that a previously drafted will is not valid, and that the estate property transfer must be determined by the the Court. Some of the reasons wills are invalid include failure to validate properly, failure to meet current state legal requirements, and failure to include new property in the will.

We Help You Choose the Right Legal Instruments to Protect Your Legacy

Planning a personalized meeting with you helps ensure that we know what your needs are so we can help you achieve the goals you have in mind. Protecting your estate may include drafting a will, trust, health directive, and other tools to create a plan that aligns with your goals.

Call Behrends Legal today!

970-578-9455

PURSUE GROWTH

More than ever before, tradenames and trademarks are your business identity in the global market. Your business name ensures that potential investors and clients are choosing a product of quality; your product! Choosing a tradename is thoughtful process that helps reflect your vision for the product/service, and your commitment to maintaining quality. We welcome international brands at Behrends Legal law firm, and we are excited to help you file a U.S. Trademark, or an International Trademark. Please reach out to us for more information on filing your international brand in the U.S and abroad.

You may be a U.S. based company seeking to file an international trademark in other countries. We are here to help you! The trademark filing process depends on which country you are filing in, and for many European countries, only one filing may be needed. Contact us to share your goals, and we’ll help you create a plan to file the Trademark registrations you need!