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Trademarking

Love is a matter of chemistry. Sex is a matter of physics. Biology is entirely different.

Protecting your music, movie, lyrics or screenplay is a matter of copyright, but protecting your names, logos and brand image is a matter of trademarks. The laws are entirely different, the rules are entirely different, and the fees are.. well.. you get the idea.

While copyright protects a piece of artistic or literary work, trademarks protect brands. Words and short phrases, logos or typefaces that are linked to a specific product - and in the world of media, your 'product' is yourself, your band or your movie. You can't copyright the word 'sponge', but if your movie, band or CD is called 'sponge' then you can get a trademark to prevent others using the word in a similar venture. Or, you could just get yourself a better name. Sponge. Sheesh.

Trademarks are all about protecting money and image, not confirming ownership. By trademarking 'sponge' or the logo you created (a guitar made of.. you guessed it...) you don't somehow 'own' sponges the world over. Trademarks are tied to classes of use, for example you can say:

We, Brad Meedo of Santa Monica CA, trademark the word "SPONGE" as relating to the name of a musical artist and/or act, sound, video and associated media productions and recordings including their artwork.

This means that nobody (within the countries you trademarked in) can form another band called 'sponge', or make CDs and DVDs with 'sponge' on the cover - as they would be diluting your brand image - in other words people might think those products came from you, buy them, hate them, and therefore hate you. The concept of classes is vital in trademarks - it's not the THING that matters, it's how people can use it. McDonalds has the global trademarks for their name on fast food premises and products, but they can't use those trademarks to sue 250,000 Scotsmen who just happen to be called 'McDonald'. Of course if one of them opens a burger bar...

If you're a musician or movie maker, then the things you should trademark include:

• The name of your band or movie
• The 'signature artwork' - the logo you painted on your bass drum, or the movie poster
• Any logotype you have specifically designed for your brand (such as a font)
• The names of any lead characters within your movie (so, Mr Bond.....)

You can't trademark things that you can copyright. In other words, your lyrics, script, melody, photographs or videos. You also can't trademark 'instances in common use' such as song titles or (as one famous joke implied) the chords E and G. Copyright stops people putting your photograph on a hoodie. Trademark stops them putting your name on the back - and yes, if you're a musician that uses their own name, you can trademark that too - PROVIDED you're not called 'Madonna'. That's taken.

A very common question we get is 'can I trademark the name of my album?', and the answer is.. well.. no. Most albums use generic English words and phrases 'in common use' and can't be trademarked. If you dare to even try trademarking 'Greatest Hits Volume 4' you'll be laughed out of the USPTO. It's also not possible to copyright an album title (only the artistic works on it), and so you really cannot prevent anyone making a record of the same name - UNLESS of course you use your trademarked band name as the title. Now the penny drops about self-titled first CDs. muah.

Applying for trademarks

Getting a trademark is very similar to getting a copyright, it's all about filling in forms and paying people money. The fees for trademarks are usually a LOT higher than for copyright, and there is no "automatic right" to trademark as there is with copyright. Just because you chose the band name doesn't mean you have trademark - until you pay! It's also not guaranteed you'll get it anyways - just as with patents, when you apply for a trademark the issuers will first check to see if anyone else has trademarked that word or logo in that class, and it's a first-come-first-served rule. If it's taken, you CANNOT get one yourself, so one of the fun things we do with record labels and movie studios is finding out in advance if the names being planned are still 'available'. It's not always that obvious, as many marks extend over several classes - you can't make a toaster and call it the "Evanescence Toaster". Domestic appliances are in a class held by the band. No, we're not about to discuss why!