This week’s letter-based-topic might seem like a stretch since, really, the subjects are trademarks and copyrights – neither of which begin with an r. But putting registered in front of those terms is not just a cop-out that a lazy writer has used to fit with a weekly theme. There are actually very important distinctions between registered and unregistered intellectual properties.
Technically, you do not have to register trademarked or copyrighted property. An unregistered trademark simply needs the little ™ symbol next to it and, voilà, the property is unofficially trademarked. You can even establish a proprietary right to the mark by using it in the market.
The same general principle is also applicable to copyrights. When the United States signed onto the Berne Convention in the late 80’s, it effectively agreed to see an author copyrighting his or her work as an automatic right. That means that, thanks to the Berne Convention, no registration is required to copyright something in the United States.
However, it would behoove anyone looking to protect their intellectual property to register a trademark or copyright with the United States government. Though you, technically, do not have to register, doing so really bolsters the legal protections afforded to you as the creator of whatever intellectual property that needs protection.
An unregistered trademark, for example, may afford you a small area of geographic protection, ensuring none of your local competitors will be able to rip-off your intellectual property. That protection, however, is limited, which means that your mark could be used somewhere else in the country or, depending on how far apart the two parties are, the same state. The extent to which you can pursue litigation for trademark infringement is also limited, unless you register. To make matters worse for those who forgo registration, the United States typically prefers a first-to-file system, rather than a first-to-use, meaning if someone beats you to the USPTO, they may be able to claim the mark as their own as they registered it first.
Registered and unregistered copyrights have similar distinctions. As mentioned above, you do not have to register a copyright – there is an international understanding of an artist’s natural right to own their work. However, if you want to pursue litigation, you have to register with the United States Copyright Office. In fact you cannot even claim statutory damage unless you registered for a copyright before the infringement took place so, just like with a trademark, make sure you register your intellectual property.
It is all too easy to rationalize not registering a trademark or copyright. You are, after all, afforded some protection for unregistered intellectual properties, and pursuing registration can be costly and time-consuming. But seeing your property used for someone else’s gain and not being able to do anything about will be far more distressing than the registration process ever could be. So when you begin to use intellectual property that can qualify for a trademark or copyright, begin the registration process immediately and protect those properties.