​Trademark infringement is the unauthorized use of a trademark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services. But what does this mean for your small business? How can you avoid receiving a nasty cease and desist letter accusing you of infringing someone else’s trademark? And how much can a trademark mistake cost you?

We’ve talked before about the importance of conducting a thorough trademark search before launching a brand name or logo or slogan. You might be surprised to learn about similar trademarks that are already in use. You might learn that your proposed trademark would be considered relatively weak. Even if trademark registration simply isn’t in the budget yet or a federal registration doesn’t make sense for other reasons, you still need to know what trademarks your competitors are already using. 

​Whatever the reason for not moving forward with a trademark registration, that still leaves an important question—What rights do you have if you don’t or can’t register your trademark? Is there anything you can do to protect your unregistered trademark?

Too many small business owners assume that just because something is on the internet, it must be free to use. For example, have you ever:

• copied and pasted an image from a Google search to use on your website?
• used an image from a stock photography database without reading the licensing terms?
• created a video for your social media and used music that you acknowledged you didn’t have the rights to?
• streamed music in your place of business without having a business account with your streaming service?

​In each of these instances, your business is likely to receive a nasty cease and desist letter accusing you of copyright infringement and demanding the immediate payment of money damages. 

When you are working hard to build a brand, it’s easy to say “just trademark everything…name, multiple logos, slogans.” And in a perfect world, you should trademark every aspect of your brand. But in the real world, trademark registrations are not cheap, especially on a start-up budget. And multiple trademark registrations won’t matter if you aren’t also making sales, hiring staff as you grow, and improving your product or service.

So if budget is an issue, what should you trademark first? Your name or your logo?

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​A licensing agreement is a contract in which you, the licensor, gives someone else, the licensee, permission to do something that they otherwise would not have the right to do. There are many situations in which a small business might use a licensing agreement:

• If your business is only reaching customers in a particular region, you might enter into a licensing agreement with another business to sell your products or services in a different region. 
• If your business develops software, you are typically giving end users permission to use the software in a particular way, but you are not selling the underlying code that makes up the software. (This is also true of businesses that operate under a software as a service or SaaS business model.)
• If you create content for others, you have to decide whether you are giving up all of your rights in that content, or simply giving your client permission to use that content (in which case, you retain the right to re-use that content with another client).
• If your business has a proprietary process or patent rights in a particular technology, you might monetize that confidential information by giving another business the right to use that confidential information.
• If you franchise your business or offer a business opportunity, you are licensing your brand for someone else to use.

​While licensing agreements need to be customized to fit your particular business situation, there are some common terms that most licensing agreements should address.

The bundle of rights associated with the concept of “copyright” exists from the moment a work is created in a fixed form. However, those rights generally belong to the creator or author of the work. So what happens when that author is someone you are paying to create the work for you, your business, or non-profit?

We’ve previously discussed protecting your brand by registering and enforcing your trademarks. But what about the unique content you create? Enter copyright law. Copyright protects “original works of authorship.” This can be anything from written works like books and articles, to musical and artistic creations, even computer programs and architectural plans. Copyright is an important area of law, not just for creatives, but any entrepreneur who creates content or uses content created by someone else. 

Just what does copyright protect? And why should you register your copyrights?

The Coronavirus pandemic has turned life upside down for most of the world, and has been especially difficult for small businesses and nonprofits. However, this hasn’t completely eliminated legal obligations and deadlines. I have said before, and I will say it again, I firmly believe that we will get through this. Many small businesses and nonprofits will find ways to pick back up and re-open their doors. Many of you have already found creative ways to transition to online sales. Small businesses and nonprofits are an essential part of the economy, and that will still be true on the other side of this pandemic. 

One of the many legal obligations that you may be tempted to set on the backburner (or may simply have forgotten about in the midst of the current crisis) are your trademark deadlines. The USPTO is not granting waivers of fees or extensions of time for most trademark related filings. These include:

• Deadlines for filing statements of use or requesting an extension of time;
• Deadlines for filing trademark renewals, including affidavits of continued use; and 
• Time periods related to proceedings before the Trademark Trial and Appeal Board. 

Building a successful business is hard work. You need a great product or service, a marketing plan for getting the word out, skills in sales to convert your product or service into actual money, a head for numbers and finance, and innumerable leadership skills to tie it all together. Today, let’s talk about the marketing/branding piece. We’re often asked: Should my business name and brand name be the same? What is a DBA, and do I need one? And how do I file one here in Ohio? The Secretary of State doesn’t have a DBA form. And what is the difference between a trade name and a fictitious name?

In Part 1 of this series, we discussed the importance of conducting a trademark search. In Part 2, we explained this idea of the “likelihood of confusion” and what to look for in that trademark search. And in Part 3, we discussed how to register your trademarks with the USPTO. But once your trademark is registered, it’s your job to protect it and enforce your rights. To do so, you must file certain maintenance documents in a timely manner and actively police your trademark.