Shit’s getting real. You’ve created a name for yourself and don’t want to lose what you’ve built to a copycat lurking in the wings. So what does it mean to protect your brand as a creator? What’s in it for you and what does the process of protecting your brand look like? Let’s dive in.
How can I legally protect my brand?
When creators think about protecting their brand, they think about their handle or channel name. However, that’s just the tip of the iceberg. From a legal standpoint, protecting a brand requires a holistic approach and adopting some strategies bigger companies implement for their businesses. Most of this thinking is a function of—“Well, I’m just an influencer.”
But that all changes today after you finish reading this article (and maybe *idk* share it with your fellow creator pals?).
When a lawyer is asked, “How do I legally protect my brand?”, it’s a loaded question. Lawyers in the entertainment space will consider the following:
- Starting with your business setup: are you formally organized as a business in your state to protect your personal assets from your business liabilities?
- What kind of contracts are in place and how are they working for you?
- What sort of content are you creating for your business and what strategies can we implement to protect it from getting stolen?
- Are you selling anything to your audience? What sort of protections do we need to put in place?
- How can we protect your signature name, logo, or signature course?
For purposes of today though, we’re chatting about trademarks. We’ve talked about intellectual property and social media in the past, so the focus here will be the protectability of your brand name and what that process looks like.
How do you protect your brand name?
Brand protection should start before launch. But let’s be real, most creatives take messy action to get out of their own way— myself included. With that comes a few risks, most notably, trademark infringement.
Trademarks are the source identifiers of the brands and businesses we know and love. When we hear a certain name, see a certain logo, or even color in some instances, we know that those elements are associated with a specific brand and its product or service. Companies protect this by registering their names, logos, slogans, etc. with the United States Patent and Trademark Office (USPTO for short).
A registered trademark provides a ton of protection, including the ability to sue infringers in federal court and protection against similar or identical marks from being filed later on. However, it’s important to keep in mind that trademarks are limited to the categories of goods and services that were applied for. You can’t just secure the name for being used in all ways. That’s why we see names like Delta being used by an airline versus bathroom fixtures.
Essentially, this gives you the right to directly confront copycats that may not have registered the name, but are using it in the same industries as you or having the USPTO protect against future filings that are similar or identical to yours by citing your application as a reason for rejection without even lifting a finger.
When staking your claim for a brand name, please use the appropriate symbols:
- ™ when you intend on, but do not have a trademark registration with the USPTO
- ® when you have a certificate of registration in your trademark
- NOT this one: ©
With more creatives entering the creator economy with the goal of building a full-fledged business, it’s important to clear your name early. Conduct a trademark clearance search before you get started to determine whether or not a desired brand name is already taken. Social media handle availability may be helpful, but definitely not a substitute for a clearance search.
The last thing you want to see or experience as a creator is a cease-and-desist letter. Or worse, a lawsuit from a brand owner with a similar or identical name. You’ll have to rebrand and, depending on how far along your journey, you may have to pay out those owners for your infringement. Most of this could be avoided if you consult an attorney before launching.
The trademark registration process takes well over a year to complete. Currently, the wait is between eight to ten months before your application is even assigned to an examining attorney to review. Following the assignment of an examining attorney, your application is evaluated. If there are any issues with your application, the attorney may submit an objection along with an explanation. This is called an office action.
You do get an opportunity to respond to the office action. Once you’ve dealt with those office action issues, your application will proceed to publication, giving people an opportunity to contest your application.
The USPTO has a publication called the Trademark Official Gazette where they announce a list of pending applications every Tuesday. This allows people with prior rights an opportunity to contest the application within thirty days of that published announcement. Assuming no objections were filed after this stage, the USPTO will issue a registration certificate months later. Now you’re officially official!
Applying for registration is not a guaranteed slam dunk though. Depending on the name and the evidence you submit with your application to support that you’re using it as described, the USPTO can refuse it. Again, this is where an attorney can come in handy to help with the filing and strategy to make this happen.
How do I protect my brand without a trademark?
The truth is most creators want to be sure that they’ve got something worth protecting before actually legally protecting themselves. This isn’t a judgment, just an observation. Even without a trademark, most creators start out by securing their handles on relevant platforms.
Some even go as far as securing variations of their name, separating it with periods or underscores to protect against copycats or scammers. Creators can also secure domain names to protect their names.
Earlier I mentioned how creators can use ™ when they intend to get a trademark but, but don’t have a trademark registration with the USPTO. If you’re just starting out, or are in the process of applying for a trademark registration, there is an unofficial way of staking your claim in a name. Assuming somebody else is not already using the name, this affords you common law trademark rights.
What are common law trademark rights?
Common law trademark rights are limited and expensive to establish. You can file a trademark infringement lawsuit against an infringer without having a registered mark yourself. You can also contest a pending application, or cancel a registration, assuming the infringer used the mark AFTER you.
But…imagine all the time and money it will take to do that. Lawyers are not cheap. In most cases, attorneys would recommend rebranding over filing a six-figure lawsuit. The numbers typically just don’t make sense.
Another wrinkle to this is that as a common law trademark owner, your rights have geographical limitations, which are limited to where the mark is used. Content creators are producing content in one state and reaching people across the country (and the globe, in some cases).
Needless to say, it’s an uphill battle to operate this way and fight future copycats without a registration.
How can creators protect their works?
If you’re looking to protect your work you’re in luck. We’ve got a guide to protecting your work and avoiding infringement to get you started.