This week Christine interviews Christian Williams, founder and managing attorney of Bevel Law. Together, they discuss Trademark Law and why every podcaster can benefit from taking advantage of it. From this informative conversation, we have come up with 8 things every podcaster should know about Trademark Registration.
Turning your podcast into a business: Should you have an entity?
Short answer – no.
It is not necessary. People start thinking about turning their podcast into a business entity if they are worried about possibly being sued and possibly losing their homes, cars, or other personal assets. If they happen to get sued, their assets are at risk. Establishing an entity separates your business from your personal assets.
What kind of business should I apply for?
There are two types of businesses podcasters can consider that are taxed separately from their owners. These are:
LLCs – These are limited liability companies
After you have made your decision, you can proceed to think about registering your trademark.
What is trademark registration, why is it important?
A trademark is a type of intellectual property. It is a property we cannot physically touch. Your ideas and creative genius fall under the category of intellectual property, and there are three things you should know when it comes to such property. These are:
Patents cover inventions, copyright covers content, and trademarks protect your brand. Examples of a trademark include business names, logos, colors, and sounds. Essentially, trademarks are specific indicators that help people identify and remember your brand more efficiently.
When should you register your trademark?
When it comes to trademark registration, the sooner you do it, the better. Christian suggests that you plan ahead as registration can take about 9-18 months to complete. She also says that before beginning the process, you should find a lawyer that you trust and get along with as soon as you can so you have the assurance that your trademark registration will go smoothly.
There can be many people using the same name (aka title). However, the person who has the legal right to use that trademark is the person who registers it first. This is known as trademark priority, and once you have it you are given nationwide exclusive use of the trademark name and have the right to sue anyone else who uses it. Fortunately, the trademark registration office allows you to register in advance. You do not even need to have started your podcast to secure the trademark. You also avoid going to court and spending attorney fees to win the rights to the trademark name.
What should you consider when registering your trademark?
There are a couple of things to consider when registering your trademark. One of these is something called the crowded room doctrine. Sometimes, two completely different businesses use the same trademark name even though they sell completely different products or services. In such cases, neither business owner can sue the other because they are not selling the same product. In other cases, the trademark office allows multiple federal registrations to have similar trademarks only if the phrase used in the trademark name is generic. So, for example, using the word podcast is allowed as long as you have other words that separate your trademark name from others.
You should note that federal law affects everyone, but state law does not. You should know the various laws according to the state your business is registered. You should also note that trademarks can last forever, ensuring that your generation and those after can continue to use and expand your brand indefinitely.
What should you do if you receive a cease-and-desist letter?
Although a cease-and-desist letter can be unpleasant and scary, you should not be too alarmed. Christian says that a cease-and-desist letter on its own does not have any legal authority. Many of these letters are bluffs. In most cases, the person serving you has no intention of doing anything about it. However, these letters are usually the first step to litigation in trademark law, so you should keep your eye on them. If, in this case, both business owners have not registered said trademark, then it is only protected by common law. Essentially, it is protected only in its geographic area, i.e., the state where it is based. If one of the business owners has their trademark registered, then they are protected nationally. They can sue the other business owner and secure their brand.
Beware of trademark squatting!
One thing every podcaster should be aware of is trademark squatting. Trademark squatting happens when someone registers your trademark before you, then offers to sell it to you. It is not uncommon for people to learn about your potential trademark name or figure out what trademarks people are likely to use and sit on them until someone needs to buy them. Therefore, be wary of whom you share your ideas with, and if you use brainstorming platforms, do so with caution.
How much does it cost?
Registering your trademark can cost between $225 to $600, depending on the specific requirements for your entity. Attorney fees can vary depending on the lawyer or law firm you decide to hire. Attorney fees can be charged hourly or at a fixed rate. Christian suggests working with an attorney that charges a fixed rate for their work with trademark law. Generally, you should expect to pay about $500 to $2500 in attorney fees. Visit Trademark fee information | USPTO for more information on trademark registration.
To learn more about or work with Christian, Click here.
Watch her interview with Christine.