Personal branding--trademark or copyright issues?

Some discussion on this came up during Cockygate. Best advice: consult with a lawyer who knows this stuff inside and out.

But in case you don't, here's my layman's understanding.

First, you have copyright the minute you write something. You don't need to register to have copyright. But your ability to sue for damages if someone infringes are extremely limited if you don't register. (Perhaps non-existent?) And if you don't file copyright and Hollywood takes an interest they've been known to file on people's work and then dare them to sue to prove it was a bad filing.

Second, trademark is somewhat similar in that if you can prove commercial use of your mark occurred before someone else registered that mark then you should be safe. But that's for the U.S. In other countries it's who registers the mark first. And then you have to defend the mark. So if you let other people use your trademark and don't let them know it's yours then it basically becomes generic and undefendable. See: Kleenex for a good example.

Also, the real issue is how deep are your pockets and how much do you want to spend to defend your copyright and/or trademark? You may be in the right but can you afford to fight and prove it? When Cockygate happened there were C/D letters issued that shouldn't have been according to lawyers that weighed in at the time but some authors just caved and changed their titles rather than fight it. (Note that you can trademark a series name but not a book title, at least not in the U.S., although I'm pretty sure publishing your own version of Harry Potter and the Sorcerer's Stone would result in a lawsuit of some sort or other. Also, my understanding is that in Germany all books have to have unique titles, so again this is not as consistent a thing as we'd all like it to be.)

Bottom line: If you really care about doing this right, you should register all your marks and copyrights and then you should actively defend them.

I don't know anyone who fusses over copyright when it's their personal brand. From what I can tell, you're simply branding yourself with a catchy graphic that means you. The only thing someone would want to possibly steal is your tagline. So at that point it comes down to--if there's trouble later, can you live with simply changing your tagline?

It's hard to picture this being a problem, but OTOH, nobody expected Cockygate, either.

Trademarking is way more work and usually involves lawyers, I believe. And I don't think it's the case that you're trying to stop anyone else using that phrase, which is something I have a certain ethical problem with. How can anyone own words? And if this continues into absurdity, nobody will be able to say anything.

Hence the strong emotions surrounding Cockygate, which involved a writer attempting to trademark the word cocky.

Copyright registration would establish that you have the right to use a particular phrase, which seems like all you would need.

CathleenT said:

Copyright registration would establish that you have the right to use a particular phrase, which seems like all you would need.

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I don't think this is true. Copyright is conveyed as soon as you put words down, but a sufficiently generic phrase is probably not a copyright you could realistically defend in court. I do think you'd want something like trademark here.

That said: IANAL, and I think OP needs to consult one.

CathleenT said:

Copyright registration would establish that you have the right to use a particular phrase, which seems like all you would need.

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No it doesn't. Registering a copyright provides a date and potentially higher punitive funds if the case goes to court and the jury decides that your rights were infringed.

Using a phrase isn't enough; you need to convince a jury of substantial similarity in words and that you created the work, even if you register copyright.

L.C. Blackwell said:

Not if I can help it, no. It wouldn't just be a matter of removing it from websites, etc., since I'm planning to use it as branding on the cover of print editions, and I wouldn't want to have to reprint or yank them. I guess my question is, where a logline/tagline is concerned, do I file as trademark? or copyright?

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You would want to file for trademark. You need to first pay to have research done in terms of prior use, then an attorney specializing in trademarks to do the paperwork, unless you're exceedingly comfortable with trademark law.

Short answer: Ask a trademark attorney.

I agree it's a trademark you need. You need to be using the right kind of font--which is part of the trademark--and have all the rights to use it. It ends up being quite expensive by the end. Unless you have a pen name I can't see from your website, you aren't earning the kind of money yet to justify it. (Unless you have tens of thousands in savings to burn on various expenses, in which case, yay!) Still, waiting until that sort of spend has earnings to write off against is, imo, a good idea.

Also, unless you have five or six books teed up for release, it'd be cheaper to change the phrase and graphic than to go through the trademark process any time in the next couple of years.

I always tell people to spend on pre-made covers and proofreading at first, use a free website service, and only start upgrading as you have money to burn. A lot will be burned on advertising anyway, so you need to be in the "I've made 200K at this" level to even begin to think about thinks like a trademarked brand, incorporating, original art covers, or several other high-end purchases.

Good luck!

Pretty sure those fonts aren't actually supplied by GIMP. GIMP just accesses the fonts on your computer, most of which are likely from Microsoft Word and not necessarily licensed for commercial use. (I changed over all the fonts on my self-made covers this last summer to be safe after I realized that.) Google provides a large number of fonts that I believe are good for commercial use: https://fonts.google.com/ but you'll want to track down the license and read it. Also, since you're using GIMP know that any of those monthly font subscriptions, which was what I tried to do first to solve this issue, aren't going to work for you because they hide the fonts somewhere on your computer that GIMP can't find and they won't tell you where to tell GIMP the path. So you either need free ones or to purchase your fonts outright if you're using GIMP.

There are a number of font sites that have fonts that are free for commercial use, but always be sure to read the license that comes with any font you download. You can start with fonts.com and fontsquirrel.com.

dafont.com is my favorite. And yes, read the licenses--very important; some fonts are free for personal use, but not commercial. And while many of the fonts are free, I always "tip" the designers of free fonts if they include a tip jar. They're creatives too.

AW Admin said:

You would want to file for trademark. You need to first pay to have research done in terms of prior use, then an attorney specializing in trademarks to do the paperwork, unless you're exceedingly comfortable with trademark law.

Short answer: Ask a trademark attorney.

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This. Sometimes you'll hear people call it a servicemark. Same thing, same cost. And you do not want to try this without a trademark attorney.

L.C. Blackwell said:

Thanks so much, everyone who has responded. Having done a little research on trademarks, y'all are quite right, that is far too prohibitively expensive. One thing I did learn, however, is that there are two types of trademark. One involves font and graphics and colors: the other is merely the text used. Frequently, companies will file for both, driving up their registration costs enormously.

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Just as a data point for you, I've had to submit some servicemarks a couple years back for a trademark happy executive in my company who thought money grew on trees. In the first five years of research to application through approval to proof of use, just one for US only (and text/words used only) cost $12k on average. And that doesn't cover $$ if you actually have to defend. Soooooooo, yeah. :/

Huh. Interesting find on the state trademarking!

As far as the disparity in what you found versus what I've seen at work, well...hahahahahahhaha, the lawyers don't, um, always tell you that oh hey, when you have to file for proof of use, prove later that you're still using it, etc. and ooh, guess what? More legal fees because you have to use the lawyer for that, too! I and my poor team member who handles all the rigamarole around the trademarks actually went through and added up all the costs involved. And it came out to a LOT more than the $5K the attorney said it would be. Because he was thinking to answer the question "Okay, this is how much it costs to file." Not everything that comes after.

That final number will be dependent on how experienced and what state your attorney is operating in (as that influences the billable rate they charge). But trademark services are kind of a niche area where attorneys can specialize and therefore charge more.

That's JMHO, so take it all with a grain of salt. But yeah. It's $$$

Winks here would not recommend unless you are making a killing.

L.C. Blackwell said:

Me, back at that university crossroads.... English major or pre-law? Needless to say, I didn't choose pre-law.

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