Trademarks and Copyrights in Packaging

Before you even consider zeroing in on your brand, you need to think about trademarking it. And even before that, you need to search what has already been trademarked. Nothing is more deflating than finishing your branding process only to find that your name already exists or some form of your logo has already been created. The first thing you should do is search to see if any form of your preliminary brand is already being used. The website of the United States Patent and Trademark Office has a trademark database where you will be able to see if the mark you are considering is already in use or applied for, or if there are similar existing trademarks. A google search is also a good idea, as there may be unregistered trademarks similar to yours in use as well.

So, let’s define the word trademark. The U.S. Patent and Trademark Department says, “A trademark includes any word, name, symbol, or design, or any combination used, or intended to be used in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.” A trademark indicates the ownership of brands, and protects a packaging or product design from theft or copying.

There are two broad categories of trademarks recognized in the United States: unregistered and registered. Varying factors determine which of these you should choose for your brand or logo. However, the level of protection you think you will need for your brand ultimately determines the path. If you own a business of any size, you should at least have an unregistered trademark. To gain an unregistered trademark for your brand or logo, begin by adding the trademark symbol (™) to your design. And that’s that. For real. Placing the ™ symbol with your brand on all correspondence, websites, invoices or packing slips constitutes use and is all you are required to do for an unregistered trademark.

The first move toward protecting your trademark is to actively use it. However, one of the potential downfalls to an unregistered trademark is that it doesn’t offer you much legal protection in case of a dispute. Generally speaking, the company that used the unregistered trademark first will win the case.

Now, when should you consider obtaining a registered trademark? Here are some reasons you would want to register a trademark:

• Your business is growing, prompting the need for more protection.

• You need investors.

• Your niche business may be copied.

• You apply for a business loan.

• You hire an advertising agency for help promoting your business.

• You are ready to sell your business.

You may ask yourself, is registering a trademark a lot more complicated? It has to be, right? There are a few more steps, and to actually have your mark approved can take up to six months. The Trademark Electronic Application System (TEAS) is a service of the USPTO, and this is where you will fill out your application to register your mark. Fees range from $225 to $400 per class of goods or services you wish the trademark to be placed on. For example, if you are developing a brand or logo for a company that will place its mark on electronics and food items, you are putting that logo on two different classes of goods and will be charged two application fees. TEAS has a PDF preview available of the electronic application for you to review before you start the actual electronic application. This is helpful because once you begin the process online, you have a 60-minute time limit to complete your session. You can extend the time limit, but going over the sample PDF should answer a lot of questions before you get started.

Consideration of these matters at the beginning of a project can protect you from potential issues further along in the design process. Do your due diligence upfront, and it’ll save you a lot of heartache in the long run.