A Startup’s Guide to Marking Intellectual Property


Startups

July 16, 2018

Startup Guide

By: John Acito

Knowing the Difference Between “TM”, “©” , “(R)” , “All rights reserved”, and “Patent Pending”

Intellectual property(IP) is one of those things that many people don’t think about until it’s too late. Most people know that obtaining IP protection is something worth doing, however, many believe it to be a “set-it-and-forget-it” type deal. Unfortunately, you can’t be passive when it comes to protecting your IP. You have a duty to let people know that the work you have created is yours.

We see those ™ , © ,  and ® symbols as well as the phrases “ALL rights reserved” and “Patent Pending” all over, but often people misuse or don’t use them at all in the proper way. Just because something is marked doesn’t mean it’s marked correctly.

Improper use of these types of marks and phrases can not only mislead the public, but can impact how much money one it entitled to recoup from infringers. Proper marking makes it easier to prove that an alleged infringer had notice allows you to collect the greatest amount from any damage an infringer has caused.

 

Trademarks “TM” 

The legal definition of a trademark is any word, slogan, symbol, design, or combination thereof that identifies the source of your goods and services and distinguishes them from the goods and services of another party.

Let’s start with ™

The ™ symbol stands for the word “trademark”. It is normally attached to the top or bottom corners of a brand name or logo. The main purpose of this type of marking is to alert the public that the word, slogan, symbol, or design is in the process of being trademarked. Additionally, use of this symbol may impede possible infringers from stealing or copying your work.

It is a common misconception that the ™ symbol signifies that the mark is registered with the United States Patent and Trademark Office (USPTO) when in fact it is often not. After some searching, it appears that the ™ symbol is not codified in federal law. However, common practice is that the ™ symbol means that someone is pursuing trademark rights. As a best practice, people should wait until they have a pending application before using the ™ symbol. (1.)

 

Registered Trademarks “(R)” 

Once your trademark has been processed and has been granted, you are then supposed to attach the ® to your work, again, to alert the public of the mark(s) now being legally registered with the USPTO’s system.

As you can guess, a registered trademark is a much stronger right than a pending one. This is mainly because a registered mark gives the trademark owner the standing to bring an infringement lawsuit in federal court. The ® symbol signifies you have gone through the proper legal channels and now have certain rights against infringers. It is also important to note that improper usage of the ® symbol for companies who have not registered their marks with the USPTO is a violation of federal law and carries a penalty.

 

Copyright “©”

Switching gears to copyright, the © symbol stands for the word copyright and can be used to signify a registered copyright with the United States Copyright Office. Copyrights can protect numerous things such as novels, collections of photography, songs, albums, clothing designs, and software code.

Quite often, people use this symbol on their website and stick it at the bottom. While this is a solid practice to adopt to battle against potential infringers and social media recyclers, you may want to actually register your website, website code, or any other creative works on your site in order to have a stronger case in collecting damages from infringers.

A very popular website builder, WIX, has a decent handle on instructing its users on how to best protect their work. They have an easy way to attach the © symbol automatically to the bottom of your page as well as a complementary breakdown of copyrights. While this type of functionality acts as a quick way to put the public on notice that this works is in fact yours, it may set a dangerous precedent of not properly registering your creative works. Registering your copyright and going through the proper legal channels to protect your work 1.) puts the public on notice 2.) creates an authentic record that the work is yours 3.) allows third parties easier access in contacting you about licensing your work 4.) starts the timer on calculating damages from infringers. Additionally, it demonstrates knowledge of intellectual property and shows that you are serious about protecting their work. It is also important to note that the U.S. Copyright Office doesn’t exist merely as an ornamental symbol generating machine. As one of the cheapest options of intellectual property protection, it is hard to justify not considering registration of a project that you put a lot of work into. (2.)

Once registered, the best practice follows this format: ©, year of first publication of the work, (current date if different from from publication year), name of owner

Example: © 2016-2018 John Acito

 

“All Rights Reserved”

Often paired together with the © symbol, the phrase “all rights reserved” at one point held some legal weight for fighting for rights of the copyright holder who disclaimed it. However, this term actually serves little legal function as the phrase itself, while widely used amongst artist, is not actually addressed or defined under Title 17 of the U.S. Code, which is the copyright section. What the crux of this phrase deals with is “moral rights” which are the inalienable rights of the copyright owners. First established in the Berne Convention in 1886, this agreement served as the cornerstone for international treaties involving copyrights. The convention mapped out the basic minimum amount of moral rights that aimed to protect authors and their works. (3.) It is important to note that in 2017, The U.S. Copyright Office conducted a study into the use of moral rights of attribution and integrity to see if further improvements can be made. (4.)

Basically, this type of marking can (1) grant the author of the work ownership, again serving as a way of alerting the public that the work is theirs, and (2)  allow for the author to object to any changes or repurposing of their work(which may harm reputation). Overall, “All rights reserved” aligns itself with this assertion to the public that the work is yours and that copying and reproduction of your work is prohibited.

 

“Patent Pending”

Similar to the use of ™, this phrase acts as a designator to others that your work is currently being processed for patent protection. The major takeaway is that once you alert the public of you patent pending invention, this marks the start of you being able to collect on any damages caused by infringers. Once granted you can go after any potential infringers who infringed during this time where you had your invention clearly and properly marked. Again, if you are using the term “Patent Pending” and have not filed a patent application, you are in violation of federal law (find cite). The best practice is to first file an application with the USPTO. Once filed you are free to applied the phrase to the work that you applying for. Note that the phrase should ONLY be used on the type of work you are applying for and not everything that your company sells.

Once granted, it is best practice to attach the patent information to your product or designs in this format: “U.S. Pat. No. X,XXX,XXX”.

Main takeaways for Properly Marking Your Intellectual Property.

  1. It alerts the public that the work is yours
  2. It acts as a deterrent against infringers
  3. Advantageous to have done if/when you need to go to court to enforce.
  4. Putting public on notice can also be a sales tool. It may be encouraging for potential investors or partnerships to see a company who is not only pursuing intellectual property protection but is also properly marking their innovations.

While it seems like such a small and insignificant task to mark your logos, inventions, or websites, this is the type of follow through that reflects well on your company and shows just how serious you are about protecting your business that you have worked so hard to build.

 

Further Reading:

(1.) https://www.uspto.gov/trademarks-getting-started/trademark-basics

(2.) https://academy.wix.com/en/article/copyright-101-know-your-rights

(3.) http://www.wipo.int/treaties/en/ip/berne/

(4.) https://www.copyright.gov/policy/moralrights/