How to Trademark and Copyright Your LabelSeptember 7, 2011
When you design a label to represent your product, you want it to represent YOUR product – not someone else’s. But what about the possibility that another brand could mimic your label? There are ways to protect your label design from being copied or stolen: you can obtain copyright and trademark registration. Here is some useful information about how to protect your labels against infringement.
What Is a Copyright?
A copyright is a form of legal protection granted by US federal law to protect the authors of tangible “original works of authorship” for both published and unpublished works. These works include literary, musical, and artistic works. Examples of works that can be copyrighted would include things such as a book, song, movie, or in our case: your label.
A copyright grants the owner the exclusive right to display, reproduce, and distribute the work. Your copyright endures for the entire lifetime of the original author, plus 70 years following the author’s death!
Copyright protects tangible works of authorship such as label artwork. Trademark protects words, phrases, logos, symbols, or designs that identify the source of goods or services.
So, a copyright will protect your label artwork while a trademark will protect your logo and brand name.
Should You Register Your Label Copyright and File for a Trademark?
Technically, you own the copyright to your work the second you create it. However, it is a good practice to register a copyright as a way to document your claim.
Attorney Robert S. Salter, Esq., an expert in intellectual property law at Salter and Michaelson, recommends registering both a copyright on your label artwork and a trademark for the brand name and logo design featured on your label.
“If you have an important label that you think will get some exposure, you should register the copyright. Although not required by law, it is recommended that proper copyright notice be given, i.e., C in a circle, authors name or initials, and year of publication,” said Salter.
Salter continued, “In order to take any action against somebody, you do have to register the copyright.” Registering your copyright on your label artwork grants you the basis to enforce your copyright in any future infringement lawsuit.
Is Someone Infringing On Your Label Copyright or Trademark?
First, let’s keep the types of infringement straight:
Copyright protects the artwork of the label. If another brand knocks off your label appearance, that is copyright infringement. If the name or logo of the product is being infringed, that would be trademark infringement.
You may wonder how to determine whether your label artwork has truly been knocked off – the answer is that copyright law requires proof that an alleged infringer 1) had access to see your label before creating their own label, and 2) that the alleged infringer’s label is substantially similar.
According to Salter, “It is important to understand that if the similarity between two labels happened by coincidence, you have no legal recourse. In order to have trade dress rights, you need to have acquired a ‘secondary meaning,’ which requires that you have used the trade dress for more than five years. Most people are probably not going to be able to succeed on a trade dress claim.”
Proving trademark infringement is more straightforward, however. “You would have a better chance of seeking relief against an alleged infringer if the brand names are similar. I would recommend that you file trademarks for your brand name and logo design, and enforce your rights through trademark,” said Salter.
What Recourse Do You Have if Someone is Infringing On Your Label?
If somebody copies your label, the first course of action is simply to ask them to stop using the artwork or brand name. “A lot of times, what you just want is to get the other side to change their name or to change their label design so you can avoid any confusion,” said Attorney Salter. “Your best recourse might just be a cease and desist letter.”
Salter continued, “I would always try to settle the situation by sending out a letter first. If you’re dealing with another lawyer who’s knowledgeable, he or she is probably going to advise their client to do the right thing.”
What about the possibility of winning financial damages?
“It would depend on the overall situation,” said Salter. “I’m not so sure there would be money damages in situations where the artwork is copied. That would be rare.”
When Should You Get Involved in a Copyright Lawsuit?
If you believe that another company is infringing upon your label artwork or trademarked name, it’s important to realize that the U.S. Copyright Office and US Patent and Trademark Office will not intercede on your behalf. It is up to you to defend your rights.
According to Attorney Salter, “To me the most important factor [in considering whether or not to sue] would be to evaluate the situation to see what the alleged infringement is. Did the alleged infringer see your label and pattern theirs after yours? If that’s the case you would certainly have grounds to put them on notice. However, a lawsuit can really be expensive and take a lot of time.”
“Start with a cease and desist letter. Some people will just flat out file a lawsuit, but to me that doesn’t make the most sense. Sometimes you’ve got to file the suit in order to get the other side to come to the table, but not all the time,” said Salter.
What Can You Do To Protect Your Label in Advance?
The most important thing is to independently create your label yourself, to make sure that you’re not infringing on someone else. If your label design includes a name and logo, you’re probably going to want to protect them.
First, search the name to make sure it’s available, then file a trademark to protect the name. Next, assuming the label artwork meets the minimum degree of copyrightable material, (and there are some minimum standards for original artwork), you should put the copyright symbol on the artwork. Remember, in order to take any action against somebody, you have to register your copyright.
“If it’s an important label that you think will get some exposure, you should register the copyright,” Salter advised.
What is the Process to Copyright My Label?
If you wish to register any of your work for copyright you can obtain a registration form from the U.S. Copyright Office. There is a lower registration fee for online registration ($35), called eCo. If you prefer to register by mailing in a form, the cost is $50.
You will have to send in a copy or copies of the work that you want to copyright along with your application. Note: these copies are not returned to you, so if you send a “hard copy,” make sure it is not your only “sample.” If you file for copyright online, you can send copies of your work as electronic attachments. All samples will be entered into the public record.
If you want to file for trademark protection for your brand name or logo, you can fill out a trademark application online with the US Patent and Trademark Office. The application fee is between $275-$325, if you file online using TEAS, the Trademark Electronic Application System.
For More Information About Trademark and Copyright:
Copyright FAQs – US Copyright Office
Trademarks – US Patent and Trademark Office