Protecting Copyrights And Trademarks
Most of you know where I’ve been coming from in these past 12 years as a contributing editor for PM. My goal is to help contractors become astute businesspersons and marketers. I have spent thousands of hours in phone conversations with all that have called, free of charge. I’ve returned many calls at my own expense. And I don’t receive any money from PM for my contributions. Money is not what motivates me.
Nonetheless, there is a limit to anyone’s generosity, and that is why I’ve been cracking down against those who pirate my materials and trademarks without permission or compensation.
For instance, over the past several years it has been brought to my attention that Blau Plumbing’s “plumber in the tub” registered logo has been used by a number of contractors around the country. Some do so with permission, by paying me a license fee. Others, however, have done so without asking. Charitably, I will say it’s because they don’t know any better. I have had the unpleasant experience of challenging infringers to stop doing this. I’m not looking to sue people. My role is to help my fellow contractors, not hurt them. Nor do I like to see my hard-earned bucks or theirs going in lawyers’ pockets. Legal action, however, is a last resort.
Not only our logo, but also our “valve tag” design and some other Blau proprietary items have been adapted by others for their own profitable use. Legality aside, this strikes me as a low-class thing to do. The stakes are too high for me not to act. That’s because federal law holds that if a company or person doesn’t protect his trademark/copyright interests by pursuing infringers, then the company could lose its exclusive rights to the mark. So I’ve been forced to overcome my natural inclination to look the other way.
How To Register: Anyway, the purpose of this column is not to grind my own ax. It’s a good opportunity to explain some of the intricacies of copyrights and trademarks. Some of you have your own business materials that are worth protecting.
Federal registration is the best way to secure trademark/copyright protection. Some states provide registration, but this is not as comprehensive. When a conflict arises, federal registration usually prevails over the states’.
The registration process involves a thorough search to determine if your mark is already in use or may be pending. This is important to protect yourself against infringers. Imagine spending countless dollars for stationery, signs and other marketing materials, only to find out that someone else has your mark and you get accused of infringing.
Have the application prepared by an attorney experienced in patent law. My “legal beagle” tells me it would cost approximately $1,500 to handle the process, including patent office fees, a search of federal and state archives and attorney fees. The cost, of course, will vary.
Very important: In order to obtain federal registration for a mark, the user must either be currently using the mark or intends to use it in the near future. After the application is made to the United States Patent and Trademark Office (PTO), I’m told it might take anywhere from four to nine months for the PTO to act upon the application. Your mark is then published in the Official Gazette of the PTO, where it may be seen and challenged. If someone sees your mark and feels it conflicts with theirs, they must then file papers with the PTO opposing your mark. This would delay and possibly prevent you from obtaining your mark.Frequently, the grounds for opposition may be challenged as well.
Once you receive registration, suppose you find someone else using it or something very similar. Then you challenge the other party to prove they are the rightful owner of the mark, i.e., they have used it longer than you. With dated registration, this is simple to do. Without registration, it can be hard to prove.
The Value Of Trademarks: In a crowded field, the contractor or merchant with a distinctive trademark gains a competitive advantage. If widely advertised, the trademark can give the consumer peace of mind that the company or product meets their expectations. Patents serve as protection for a relatively short period of time because products change rapidly. But trademarks usually are kept for long periods.
I stated earlier that I “charitably” prefer to believe that most people who use our trademark do so not knowing any better. Unfortunately, I suspect at least a few do know exactly what they are doing. Their willingness to steal reflects the widespread financial and intellectual poverty that characterizes our industry. When you don’t make any money, you are forced to cut corners. When you don’t have a clue about marketing, the simplest thing to do is copy what successful firms do.
For instance, like most consultants, I sell my book at my seminars. Often I will find one or two copies missing without being paid for. It is a sad commentary on the state of our industry that anyone would steal from someone trying to help them, but it happens. (Believe it or not, from time to time I get a collect call from a contractor trying to reach me for advice! I’ll return anyone’s call, but will not stoop to accepting collect calls. Again, this speaks volumes about the sorry state of contractors in today’s world.)
The laws governing trademarks and copyrights allow plenty of leeway to “borrow” ideas from others and put your own twist on them. But the line must be drawn at blatant thievery that involves no creative input. Protecting your marketing materials makes good business sense.