Do you have a distinctive style, name or logo that represents your work as an artist? Ever wondered how to protect that special identifier that leads people straight to your work? Say hello to trade marks.
As artists, it’s important to know that there’s more than one way to protect your work or your intellectual property. Trademark law is one of the ways in which you can protect certain aspects of your work – aspects and elements that are crucial in a highly commercial sense.
Alright, so explain to me why Copyright isn’t enough?
Although Copyright is important, there is a limit to which its protection extends – for instance, Copyright law does not permit exclusive ownership of phrases, words or names and neither does it protect shapes that may be considered basic or super simplistic. (For example, the name ‘Coca Cola’ with its signature font style, receives protection under trademark law, and is most definitely not copyrightable). This means that copyright law will not help you protect or own the name of a clothing brand, the name of a dance company, a company’s logo or even the name of a music band!
What is a trademark exactly?
A trademark refers to any graphically represented mark that is primarily meant to distinguish products or services made available by one person/company from products or services of a similar nature offered for sale by a different person/company. Under Indian law (ie the Trade Marks Act, 1999) a trademark can be a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging, combination of colours or any combination. You can literally find trademarks everywhere around you – on bottles of perfume, on the packaging of appliances – even the McDonalds menu has a whole bunch of these marks on them.
And a trademark can be anything?
A trademark needs to be distinct and unique – a generic sounding word or generic looking logo cannot be protected as a trademark because of its inability to act as an effective way identifying a service or product. (If you remember – this is different from what happens with copyright, since the standard of ‘originality’ required in copyrightable material does not have to be unique or different, but just has to satisfy minimal creativity, along with the use of some skill and judgment by the creator of the work).
Another thing to remember – a good trademark should never be purely descriptive. If the name or logo you’re looking at trademarking is merely describing the service or product (like say ‘Musical Band’), then it will not qualify for trademark protection because it will fail the primary purpose of a trademark – to actually identify the product or service in a uniquely distinguishable way. Actually, the more fanciful and unrelated the name or logo – the easier it is to trademark it. Trademarks can be arbitrary, suggestive and partially descriptive in nature, but they’re not really considered very good or strong in serving their purpose as trademarks.
Hey didn’t you say trademarks help from a commercial perspective?
The whole point of a trademark is to prevent consumer confusion. Let’s say you’re in the market for the latest album by your favourite band. You walk into the store to pick up a CD, except that as you search for the album, you realize that there are now 5 bands in the market with the same name! (assume that the cover art on all the CDs of the different bands only feature the band’s name in black against a white background). Now this might not be a problem for you really, because you know what your favourite band sounds like and after listening to a little bit of all 5 CDs, you’ve figured out the one that belongs to your favourite band. Just as you’re leaving the store though, your friend walks in hoping to buy the same CD you’ve just picked up. She’s heard you rave about your favourite band, but she’s never really listened to any of their music, so she’s actually quite unfamiliar and unsure of what they sound like. This means that she’s going to have some trouble identifying your favourite band from 4 other identically named bands – a problem that you become aware of when a few minutes later, you receive a call from your friend who was wondering if you could get back to the store to help her find the CD she wants.
Had your favourite band decided to register their name as a trademark, other bands would be prevented from using the same name to identify themselves, and there would be no scope for confusion.
So, is registration the only way to go?
While it is possible to have an unregistered trademark (usually the name or logo will have just a TM next to it, but if its a registered trademark, then the mark will be accompanied by R), registration actually provides you with some additional rights, and is super important in the case of a dispute.
Watching out for trademark infringement is actually a big deal in most countries including India, because its one of the most highly litigated intellectual property rights out there. Often consumers come to associate a product or service’s trademark with a certain reputation or quality that is expected of the product or service. For instance, say you are a designer who has recently launched a line of footwear. Your collection is really successful and people begin to associate the quality of your products with your brand name (which is the trademark in this case). Now say, there’s a small but extremely popular store that decides to come out with a line of affordable, but poorly made footwear – and they’ve decided to market them under a similar sounding or near identical brand name. People can be misled into thinking that these shoes belong to your brand, and may end up buying them only to be sorely disappointed by the quality of the products. As a consequence, two things happen:
1) The consumer and one of your patrons does not get what he or she wants; and
2) Because they think that its your brand, owing to the same trademark, they start blaming you, which equals a loss of your reputation and sales.
This sort of thing happens all the time and is called passing off – where someone tries to piggyback on a more successful brand image. The subsequent loss of value to the original trademark is referred to as trademark dilution. In these cases, it always helps to show that you have registered your original trademark so that Courts do not have spend too much time figuring out who copied who, and as a consequence, who is damaging whose reputation.
Ok, so how easy is it to get your trademark registered?
The truth is trademark registration does not come easy or cheap. It’s best if a lawyer is consulted to help you out with the process of actually figuring out what class or category you can register your trademark under. In addition, if you have an international presence, then you might have to register your trademark in different countries, which equals more time and money.
Having said that, a trademark is an investment. Exclusively own your brand name or logo, and you get to have complete control over the goodwill and credibility associated with it. This in turn can be a source of monetary and creative benefits in the future, especially when other companies and artists want to collaborate with you so that they too can benefit from your good reputation. The other cool thing about trademarks is that you can renew their registration, so unlike with copyright which can expire leading you to ultimately lose your rights, there is no real limit on how long you can own, and consequently commercially use a trademark, so long as you register and renew its registration.
So just to be sure, what do artists need to remember about trademark?
Trademarks are actually a lot more important to artists, then anyone gives them credit for. If you’re a choreographer looking to protect the name of your dance company, or if you’re part of a band and you want to make sure that after a split, no other member of the band can make a breakaway band using the same name, or if you’re a designer with a unique style and signature look that you don’t want others associating with knock-offs – well, you ought to appreciate trademarks, because that’s what makes sure that your fans and supporters investing in your services or products, are getting exactly what they want from you, and no one else.
This was just a very brief outline of the basics of trademark, and how they’re useful to artists. Although later posts will deal with specific applications of trademark law, do go ahead and leave a comment or get in touch with me, for any further queries or questions you might have.