Trademark and Copyright
What is a Copyright?
A copyright is the right to control any original written or artistic work that is fixed in some tangible form. Copyrights extend to literary works, musical compositions and recordings, plays and movies, and even architecture. Further, the copyrighted work doesn’t have to be anything special or professional. Any blog post, doodle, or recorded music is copyrightable. All it needs is to be unique, more than just facts, and not based substantially on some other copyrighted work.
Do I Need to Register My Work to Get a Copyright?
No. In the past, federal law required a copy of any copyrighted work to be sent to the Library of Congress. However, now that rule only applies to registered copyrights. Current law states that you have a copyright as soon as the work is “fixed” or put in a tangible format that can be perceived and reproduced. So once you draw a doodle on your sticky note, you have a copyright in that doodle.
While you have a copyright automatically under current law, registering a copyright has many benefits that make registration a very attractive option. First, because to register a copyright federally requires the work to be filed, it creates a legal presumption that you made your work first. That way, if another person makes the same doodle and wants to sell it on t-shirts, if you registered your doodle, a court would presume that you make your doodle first, and therefore have the copyright.
Second, you don’t have to prove how much money you lost to the infringing work, as you would without a registered copyright. Instead, federal law stipulates that an infringer is liable for anywhere from $750 to $30,000 for unintentional infringement, and up to $150,000 for intentional infringement. That’s for each infringement. So if a person intentionally copies your doodle 5 times, and you have a registered copyright, they owe you up to $750,000!
Third, you can seek to have the fees you paid your attorney to prosecute the copyright infringement case paid by the infringing party. While this may not seem like a big deal, the cost of copyright litigation can add up quickly to thousands, or even millions of dollars. One recent case involved attorney’s fees of more than $2 million!
So, while registering a copyright isn’t necessary, it’s always a good idea when you plan on using the artistic work commercially.
 17 U.S.C. 504(c)
 See Kirtsaeng v. John Wiley & Sons, Inc. 579 U.S. ___ (2016)
What is a Trademark?
A trademark is any word, phrase, name, symbol, or design that a person or company uses to identify their goods and products in commerce (i.e. Apple). A service mark is essentially the same when used to identify services (i.e. Roto Rooter), and a certification mark is used to identify an organization that certifies a product or service (i.e. Better Business Bureau). Trademarks can be registered both federally and with Colorado. However, because state trademarks only protect within the state, and federal trademarks preempt state trademarks, most people register their trademarks federally.
How Can I Get a Trademark?
The process is complicated and can take months or even years to complete. You must file with the USPTO, showing a description of your mark and show that it is either now used in commerce, or soon will be. You must also pay a fee between $225 to $400, and be able to respond to any objections the USPTO may have to registering your mark. If the USPTO rejects your application, you cannot have your fee refunded. If your application is rejected to the USPTO’s administrative court, or refile your application after making the necessary changes. While the USPTO does not require a person filing to be an attorney, most people hire an attorney. A trademark attorney can help you understand if your mark would likely be accepted by the USPTO, how to respond to objections, and help you file your mark.
After your mark is accepted, it is published for other trademark owners to review. They can file an objection with the USPTO if they think your proposed mark infringes on theirs. Finally, after your mark is registered, you have to refile every six years to keep the registration active.
Should I Register My Trademark?
There are lots of advantages to filing a trademark with the USPTO. First, your trademark allows you to prohibit anyone else form using it, or a confusingly similar mark, anywhere in the United States. Second, the USPTO keeps your trademark in their database, so the USPTO examining attorney and others researching a proposed new trademark will find your mark and, likely, avoid registering a confusingly similar new trademark. Finally, you can use your registration to register your trademark in foreign countries and even block foreign products that use your trademark from being imported.
 15 U.S.C. §1127; C.R.S. 7.70.101
 See USPTO, Protecting your Trademark: Enhancing Your Rights Through Federal Registration, pg 10. Available at https://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf
Our Trademark and Copyright Team:
Joe Tolman has recently returned to Colorado after finishing law school in Richmond, Virginia. While in school, Joe focused on experiential learning by joining the University of Richmond’s Intellectual Property and Transactional Law Clinic that focused on business entity formation and intellectual property issues. He worked as an intern prosecutor with the Brunswick County Commonwealth’s Attorney’s Office where he prosecuted misdemeanor cases. Joe also interned with the Virginia Department of Health Professions in administrative proceedings.
Joe recently joined the Colorado Bar after earning his J.D. from the University of Richmond in 2017, and his B.A. from the University of Colorado, Denver in 2014. While in law school, Joe was active in multiple clubs and organizations, including the University of Richmond’s Veterans and Military Law Association, Student Intellectual Property Association, Moot Court Board, and Phi Alpha Delta International Law Fraternity.
In his free time, Joe enjoys spending time with family and friends in any capacity, whether it is hiking along the Front Range, going to the newest hot movie, or staying at home and snuggling with his wife, daughter, puppy, and kitten.