The Short Spiel on Copyrighting

Being in business means having a great name, logo and slogan for brand recognition but are those creations copyrightable?

That is one of the biggest questions a good intellectual property lawyer gets asked all the time: “Can I copyright my slogan, logo, title or brand name?” “The short answer is no,” commented Deborah Barron, a Sacramento business lawyer of the Barron Law Office in California. “Brand names, slogans, other short phrases and business names can’t be copyrighted. In fact, they are explicitly excluded from protection,” she added.

This exclusion applies to “any” kind of name, catch phrase, and title or short ad expression. For those who write cookbooks for a living, and those who copy recipes to try at home – ingredient lists, recipes, formulas and labels are not protected by copyright. “Just hang on one second though, the text descriptions, explanations and even the directions may be copyrightable, so tread carefully,” advised Barron.

“Let’s look at someone who wants to use a name in commerce. In this instance, ideas for slogans, brand names and even business names can be protected, as trademark law protects those things ‘used in commerce’ to make your product different to the other guys product,” explained Barron. According to trademark law, it grants exclusive rights to trademark to the “first” user, but only under various conditions; something that would need to be discussed with an attorney.

“Generally speaking, some trademark protection kicks in automatically if you use your marks in business or commerce. However, having said that, you need to register that trademark federally to have nationwide protection,” Barron added.

“Back to the recipe revelation,” said Barron, “which means recipes and formulas are not protected by either trademark law or copyright law. If you seriously want to protect them, you need to patent them or consider them to be trade secrets. Keep in mind though that the formula or recipe can only be patented if it is ‘new’ and not an obvious combination of things already known,” she explained.

While one may be excused for thinking that the formula for Coca-Cola is a recipe (and it is actually) it is also a formula and is maintained in secrecy as a trade secret. Trade secret protection is indefinite so long as people keep it a secret. A patent may grant up to 20 years protection.

“The simple rule of thumb is if you don’t know for sure if what you have may qualify for a patent or may be copyrightable, then ask a lawyer who is familiar with this area of the law. Better to be safe now than sorry later,” stated Deborah Barron, a Sacramento business lawyer of the Barron Law Office in California.

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