Ask Greg: When And Why To Use Copyright And Trademark Symbols

Q: When am I required to to put a © next to my work? If I don't do that, will I lose my copyright?

A: With one exception, you are never required to use a symbol to indicate your ownership over a copyright or trademark, and the failure to use those symbols will not negatively impact your rights. That's the nice thing about our intellectual property laws... your works of art and trademarks benefit from federal protection automatically and without reservation (minus any intervening contractual or infringement issues).

That doesn't mean it's not a good idea to use those symbols whenever possible, however. The symbols perform a really useful function; they tell the world that you are aware of your rights and will defend your ownership over your copyright or trademark. It seems like a small thing, but that notice can actually make a difference. Would you rather spend your time and money fighting off potential encroachers, or would you rather be building your network and running your business? Eagle-eyed readers may have already noticed the change I made to my logo recently. Do you see it? Hiding there at the end of the word "Artist" like a little blue guardian angel?

That ™ isn't there for aesthetic reasons. It's there to put the world on notice that I recognize the value of my brand and will defend it if necessary.

That's why using these symbols is worth it. So what do they mean and how do they differ?

Copyrights (©)

From the moment your work is created (that is, fixed in a tangible medium of expression), it is granted copyright protection. You don't have to register your work with the U.S. Copyright Office, and you don't have to use a © to demonstrate to the world that the copyright is yours. In fact, you don't have to do anything. And while there are definite benefits to registration, creating the work is all the burden you must bear. It's protected no matter what. Registration and denoting ownership through use of the © symbol are considered optional, and failing to do either will not cause you to lose ownership. That, by the way, wasn't always the case. Prior to 1988, failing to use the © to denote your copyright meant you lost it. Luckily, in a rare display of common sense, Congress changed that.

Trademarks (™ and ®)

Generally speaking, from the moment you use a logo, name, phrase, etc. in commerce, it is granted limited (regional) protection. You don't have to register your mark with the U.S. Patent and Trademark Office to get that protection (although registration will give you nationwide protection), nor are you required to use a symbol to denote that your trademark receives such protection. However, there are two symbols that denote trademark  ownership - the ™ and the ® - and both carry wholly different implications.

The ™ symbol functions an awful lot like the ©; using it is completely optional and registration of your mark is not required to use it. Likewise, failing to use a ™ does not strip you of your trademark ownership.

But with the ®, everything is different. It creates the lone exception I mentioned earlier. While you don't have to register your mark in order to use a ™, you MUST register your mark if you want to use an ®. You're also not allowed to use an ® if you don't have a validly registered mark. Doing so constitutes fraud, which can be punished by fine or even imprisonment (pretty rare, but still). If you do have a validly registered mark and you fail to use the ®, you most likely won't be able to recover money for any financial harm you suffer if someone does infringe your mark.

In my opinion, these symbols are a gift to you from the U.S. government. They're easy to use, they give you a lot of authority, and the burden on you to use them is very small. While they are optional, I can't think of a single reason not to use them.

The Maker of Candy Crush Saga Is Trying To Crush Your Ability To Use The Word Candy: A Trademark Misadventure

Can you trademark a single everyday word? Even if you know nothing about trademarks, the answer seems obvious: NO. After all, if you can trademark a single word, what’s to stop you from trademarking “foot” or “bike” or “candy” and then suing someone every time they used that word in a business setting? Such a reality would be absurd. Sadly, such a reality may be upon us because King, the maker of the hit game Candy Crush Saga, has just received approval from the United States Patent and Trademark Office (USPTO) to do just that.

King is trying to protect Candy Crush Saga, its big moneymaker, from a host of imitators who use the word “candy” in their titles. So it did what any reasonably copyright holder would do to protect its financial interest… it submitted an application to trademark the word “candy” in order to prevent other game developers from using it. I’m not being sarcastic here either; King’s response IS reasonable because these imitators have confused the general public into thinking that these other Candy games were just like Candy Crush Saga, maybe even made by King. And with the public assuming all these games came from the same manufacturer, they became less likely to download the real deal and more likely to download the imitation, siphoning profit from King. This kind of marketplace confusion is exactly the type of problem that trademarks were designed to prevent.

The problem here isn’t that King tried to trademark a single word. The problem is that the USPTO let it. This is troubling for two reasons. First, the USPTO approving such an application violates a basic tenet of trademark law: that a trademark must stand out, it must be distinct. According to the USPTO’s own guidelines:

Generic words... are never registrable or enforceable against third parties. Because generic words are the common, everyday name for goods and services and everyone has the right to use such terms to refer to their goods and services, they are not protectable. 

In this case, the word “candy” is too generic; it doesn’t immediately reference a game for most people. It refers instead to a sweet food substance that a man my age shouldn't enjoy as much as I do. If, on the other hand, King had tried to trademark a unique version of the word like “Kan-D” the mark might have been stronger and more worthy of protection.

The second reason King’s application is so troubling is that it’s bad policy. If anyone can trademark any word, they can then clog up the federal court system (where trademark disputes must be litigated) with needless lawsuit after needless lawsuit. King clearly has no intention of legally pursuing every business that uses the word “candy". They simply want to prevent other game developers from making games that reference Candy Crush Saga. But you can’t base policy on the intention of one party. You have to base policy on the potential actions of everyone affected. Frankly, other trademark owners may not be as nice as King when it comes to protecting their trademarks.

Luckily, the trademark process is a long and complication one. Here, the USPTO has not officially registered the mark (which is the final step that grants the trademark owner a wide swath of protective powers). They merely approved King’s application, which means now that anyone who could be hurt by the mark has 30 days to contest the mark and try to persuade the USPTO why trademarking a single generic word is a bad idea. And believe me, there will be a lot of pushback on this, from immediately affected parties and policy wonks.

So what possessed the USPTO to approve King’s application in the first place? Was it negligence? Does it signal a strange new shift in policy? Is it a long-term gambit designed to draw attention to single-word trademark applicants and whip the public into a frenzy, thereby dissuading future like-minded applicants? Who can say? In my estimation, King’s registration will probably fail because of the pushback its application is going to get. But if the mark survives the contest period and officially registers, you can bet this won’t be the end of the story. King may well have just saved Candy Crush Saga from imitators, but it also just painted a huge target on its back.

Copying is Copying: Homages, Tributes, and Fanboyism Are Dangerous For Artists

As far as the law is concerned, copying is copying, no matter how noble your intentions.

I'm an artist too, so I get it. We are constantly bombarded by stimuli, so it's hard not to be inspired by those images. And it's even harder to avoid relying on those images when we make our own work. My advice is to try even harder than that. Because, unfortunately, copyright holders (often, but not always, large corporations) are less inclined to care about why you copied them and more inclined to sue you into oblivion if that's what they feel is required to protect their work.

Case in point: last month, a Boston-based company called Autonomie was sued for trademark infringement by Converse for making a sneaker so similar to Converse's iconic Chuck Taylors that it's nearly impossible to tell the two apart (the shoe is actually manufactured by a British company called Ethletic). Here are the shoes side-by-side.

But this isn't just ripping off for the sake of ripping off. Autonomie is all about using eco-friendly materials and fair trade practices so as to produce "high-quality garments at competitive prices to consumers that wish to make purchases with a social and environmental impact without having to sacrifice their own personal style, or break their wallet."  That's a pretty good reason, right? Too bad. The law says this is trademark infringement because there's a high likelihood that the two shoes would be confused with each other, thus steering profits away from Converse. In trademark law, this is called "blurring." Autonomie's reasons may be noble, but noble doesn't go very far in court.

Remember the whole Robin Thicke/ Marvin Gaye copyright infringement situation that came up a few months ago? Thicke was so inspired by Gaye's work that he wanted to make a song that sounded like something Gaye himself might have written. The end result was that Thicke's fanboyism got him in a legal tussle with Gaye's family.

The reasons for copying rarely matter from a legal perspective. There are very few mechanisms in the law that allow it, and they only apply in certain situations. Fair use, is the most commonly used exception but the only way to find out if it protects you is to get sued, go through months of litigation and thousands of dollars in legal fees, and find out in court. As far as I'm concerned, getting sued and winning is the same as losing because the amount of time and money required to defend yourself would never be recouped.

Copyright holders don't care what your reasons are. They only care if your work will take money out of their pocket. So don't pay homage. Don't pay tribute. Don't use the copyrighted works of others unless they give you written permission. If they don't give you permission, be creative and find another way to express yourself. Be original always in all ways, because copying someone else, even if your intention is to honor them, is the quickest way to get legally smashed. And instead of making art, you'll be paying off copyright fines.