Creator Economy, Entrepreneurs, and Trademark

 The United States Creator Economy is in full bloom.  People have found they can make money by sharing their creativity and dreams with others.  Taking creativity and making it entrepreneurial involves several key steps.  One of those steps is securing the intellectual property involved in the creativity.  Intellectual property is in four basic categories:

1) Patents.  Patents are for inventions.  Patents are secured by hiring a U.S. patent attorney or patent agent.  You can find a list of currently registered Patent Practitioners HERE.  Once acquired, a patent lasts 20 years.  It is expensive and time-consuming to get a patent, but can be worth it for genuine inventions that have the potential to sell well.

2) Copyright.  Copyright is for creative works, such as creative writings, music, art, design, photography, and other such creative works.  Copyrights generally last for the lifetime of the creator plus 70 years.  This means that the family or estate of the creator can benefit from the copyright long after the creator has died.  

3) Trade Secrets.  Trade Secrets are not registered with the government.  Trade secrets are things such as means and methods of doing things in your business, your client lists, secret recipes, etc.  For something to be considered a trade secret, you must keep it secret.  That means you keep it under lock and key, do  not put it on the internet, do not generally distribute it to employees, and share it with trusted people only on a need-to-know basis. 

4) Trademark.  Trademarks are words, images, and sometimes colors or sounds that show the source of a goods or service.  Trademarks play a big role in the Creator Economy.  The most important trademark is a beginning company is often the name of the company or the name of the major goods or service being sold.  It is very important to have a trademark lawyer do a search on a propose name BEFORE you settle on the name.  That's so your name will not conflict with any existing or pending trademarks.  Once the proposed name is cleared by the trademark lawyer, it is important to move quickly to apply to register the name.  Your application will be locked in when you file it, even though the trademark registration process takes a full year.  

What names work for a trademark? Trademark is really tricky.  A trademark cannot be "merely descriptive."  That means, the trademark cannot simply describe the goods or services.  For example, "Charbroiled Hamburgers" cannot be a trademark for burgers cooked on the grill.  "Lodge Recording Studio" cannot be a trademark for a recording studio located in a lodge.  "Dainty Cupcakes" cannot be a trademark for tiny cupcakes. 

A trademark can also not be geographic.  "State Street Deli" cannot be a trademark for a deli on State Street. An exception to this is if the trademark has acquired distinctiveness, usually over five years or more.  For example, Abbey Road Studios is a famous music studio on Abbey Road in London.  The U.S. Trademark Office refused to register this trademark as geographic, but allowed it as having acquired distinctiveness based on the fame of the studio and the music created there.  If a trademark is refused as geographic or on some other factors, it might possibly be able to go onto the Supplemental Register. 

There are many requirements that must be met for a trademark.  For example, a trademark must be used to show the source of goods or services sold in commerce.  The services must be performed for the benefit of someone else.  For example, editing or marketing your own books is not for others, while editing or marketing the books of others can have a trademark.

Trademark must be on a goods or service that are legal under federal law.  This requirement comes into play most often today regarding the sale of marijuana or related goods and services.  Although marijuana sales are legal in many states, they are still illegal under federal law.  Therefore, the US Trademark Office does not register trademarks for marijuana as a goods -- or for goods and services that are related to the use of marijuana.  

CBD oil is treated slightly differently by the Trademark Office.  The Farm Act made legal the sale of CBD products, but the FDA still prohibits the use of CBD in food or beverages or as a medicinal taken internally.  Therefore, the US Trademark Office does not register trademarks on those goods, but will register trademarks on CBD soaps, skin oils, and other items that are not consumed.  

Trademarks can be images.  If a trademark has a name and an image, it can often be best to register it both ways -- as a standard word mark and also as an image.  

Trademarks are valuable to a creative business.  Trademarks help create the identity of a business.  Trademarks add to the intrinsic value of a business.  Trademarks are often used as loan collateral, especially for tech businesses.  

Trademark is not a do-it-yourself activity!  You must work with a U.S. trademark lawyer.  

The trademark registration process is complex and takes at least a year.  The basic segments of the process are: 

  • the search to make sure the trademark is not in conflict with existing or pending marks and to make sure it meets the legal requirements;
  • gathering the information and filing the application, which includes a Specimen, which shows the trademark in use in commerce;
  • waiting for the application to be assigned to the Examiner - which takes about 6 months;
  • the trademark Examiner may issue Office Actions that must be responded to;
  • if the trademark is allowed, it moves on to Publication in the gazette, where is is posted for 30 days to allow others to object;
  • if there are no objections, the trademark can be registered and a certificate will be issued.  
The BEST trademarks are unique, original, and imaginative.  Some famous trademarks are part of the American culture -- Coca-Cola, Kleenex, Cheetos, Holiday Inn, Minute Maid, Twitter, Facebook, etc.

When you are choosing a trademark, take your time.  Consult with your trademark lawyer.  A trademark is a fine investment that can pay off for many years to come.  Unlike patent and copyright, trademark has no time limit.  If you keep renewing your trademark, it can last for as long as you keep using it.  A trademark becomes more and more valuable over time as its worth grows with your creative business.