Let us say that you have a business that you work hard to build. You spend years and untold amounts of money building the brand’s popularity and name recognition to protect your intellectual property. People have begun to notice and they know your name, your logo, your saying, or your product. Years later, someone tries to copy something one of these things and capitalize on what you have worked to build, and the copying is ruled to be legal.
Protectable Intellectual Property
This scenario can happen when you start a business unaware of what can and can not be protected. Many businesses have found that names of products, logos, and sayings can all be used by competitors because the names did not have the characteristics needed to obtain intellectual property protection.
For example, jewelry maker Cartier makes a product called The Love Bracelet. The bracelet is worn publicly by celebrities. Recently a foreign business tried to make a bracelet with the saying “Love Gold” on it. The companies became embattled in atrademark dispute.
Cartier lost when a Singapore court ruled that the word “Love,” being generic and commonly used, does not qualify for copyright protection. The foreign country was allowed to continue making and selling the bracelet.
Problems Protecting Logos and Sayings
Similarly, Wal-Mart’s yellow smiley face could not be protected because the smiley face was ruled to have been in the public domain. Cheerios tried to trademark the color yellow, only to be rebuked by a court that noted that many brands use the same color, and you can not trademark a color. Sometimes what is protectable is not so clear. Jeweler Tiffany’s did win trademark protection on its unique blue color it uses on its branding, and McDonalds has protection on the use of the “Mc” prefix for certain items.
Make Your Property Protectable
The more unique a saying or logo is, the more likely it is to qualify for protection. A word may not be able to be trademarked, but if that word is designed a certain way, or uses a certain font, it may qualify for protection. Even common phrases such as Paris Hilton’s “That’s Hot” saying, qualify for protection.
Remember that qualifying for protection doesn’t mean nobody else can ever use your intellectual property. It often simply means that they can not use it to profit, or in a way that confuses consumers. Using the Paris Hilton example, nobody will get sued just for saying “that’s hot,” but if an air conditioning company put the saying on their billboards, that could infringe on Hilton’s intellectual property.
We often worry that our branding infringes on someone else’s intellectual property, and that is a valid concern. But equally, businesses looking to sink a lot of money into advertising should make sure that their logos, names and art, are protectable from others who may purposely or accidentally end up using the same intellectual property.
Make sure your attorneys can help you grow and protect your business. The Colorado employment and business law attorneys at Ball & Barry law are here to answer any questions you may have.
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