For all business owners who are serious about building their brand
Recently I wrote about using legal changes to protect your hemp and CBD branding .
I also suggested there are creative ways to protect intellectual property for products that are not legal yet. Examples of products that don’t enjoy legal status nationwide include CBD-infused food products (no guidelines from the FDA) and marijuana products (not legal nationwide).
We all know that the push toward legal changes will inevitably give way to full legalization of these products, particularly given overwhelming consumer demand in the cannabis arena. Given that they aren’t legal yet, but you are pretty sure they will be, how can you establish and maintain a Legal Branding edge?
In the trademark arena, there are creative circle-the-wagon type approaches that may work and may not. For example, you may be able to register products or logos that are peripheral and not directly connected to an illegal substance. This approach is complicated and requires a thorough review of pros and cons. (Consult your favorite on-call-business-partner and attorney for a more in-depth discussion on whether or not that is the best approach for your brand.)
But in the copyright arena, many things are possible. Without waiting for all things to be legal across the nation, this is an excellent protection tool to add to your Legal Branding creative trademark portfolio. “How?” you ask. Let’s take a little stroll down copyright lane.
Copyright is available for original works of authorship, creatively expressed (typically stated as having a “minimal degree of creativity”), and the works must be fixed in a tangible medium of expression—which means it has to be in a form that is capable of reproduction. If you describe your design idea to someone, it isn’t protected. If you draw your design idea, it is. Because by drawing (either with a pen and paper or electronically), you have fixed it in a tangible medium of expression. Make sense?
Generally speaking, copyright may may be used to protect a variety of things like advertising, the look of your website, your website content, labeling content, design, and graphics, audio, video, movies, photos, perhaps your logo and other things that meet the criteria.
One of the benefits of using copyright protection for your Legal Branding is that it is usually a straightforward and simple process. It is not subject to the same rigorous and lengthy review process that trademark is and is less expensive. While copyright protection may not be as strong as trademark, it is better to have some protection than none.
Another advantage is that copyright protection is provided as soon as you fix your original creative expression to a tangible medium. You will, however, have more—and stronger—protection by registering with the federal copyright office. Basically, your exclusive copyright rights cannot be enforced without obtaining a federal copyright. By registering you add the following benefits to your Legal Branding portfolio of assets:
- If someone encroaches on your territory and infringes your copyright, meaning if they are a copycat, you can’t pursue an infringement action unless you have registered your copyright.
- By the same token, if you haven’t registered, although you can send a cease-and-desist letter to the infringer, it doesn’t carry much weight because any lawyer worth their weight in paperclips will know that it’s an idle threat if you haven’t federally registered.
- Federal registration also means you may be entitled to receive damages over and above actual damages, possibly as high as $150,000 per infringement.
- And, you may be entitled to collect attorneys’ fees. As a practical matter, this is a huge bonus for you from both a financial and a representation standpoint. Lawyers will be much more inclined to take your case if they know they have a way to collect their fees. No one likes to work for free.
Before we talk about using copyright as an effective Legal Branding tool for you, think about the following:
✔️What is unique to your business and is worthy of protection?
✔️Is it in idea phase, or have you reduced it to a reproducible format?
✔️If you were going to register, what would you use as an example of the work?
✔️Are your protectable assets in final form, or do you think they will continue to evolve? In other words, is now the time to file?
✔️How would it hurt your business if someone copied your work and used it as their own?
Copyright registration is a relatively simple process. It’s inexpensive. And, it’s something your favorite lawyer can easily handle or coach you through doing it yourself. It is an effective way to legally protect your brand. As they say, “use it, or lose it.”
I look forward to talking with you soon. Grab a free consultation on my calendar.