What Bloggers Need to Know About Trademark Law
There are three major types of intellectual property law: Copyright, Patent and Trademark.
The distinction between the three can often be confusing and gray, but in general copyright protects artistic expressions (literature, movies, photos, music, etc.), patents protect ideas and inventions and trademark protects any “mark” associated with a business.
However, trademark is very different from other areas of intellectual property. You don’t run afoul of the law simply by copying the mark itself but, as a tradeoff, trademarks can protect a much wider variety of things that would not fall under any other area of protection.
Yet, at the same time, trademark often overlaps with copyright, especially when dealing with some logos, and there is a great deal of confusion between copyright and trademark in discussions online.
All in all, trademark is a thorny and often misunderstood area of intellectual property law that demands a closer look, especially if you routinely write about companies or use trademarks in your post.
So what do you need to know about trademarks? The basics are below.
The Basics of Trademark Law
The goal of trademark law is to prevent confusion in the marketplace. To do this, trademark law prohibits the use of various marks in manners that are likely to cause confusion. These marks can include a variety of things including, but not limited to, logos, business names, slogans, product names, etc. In fact, a trademark can even be a color, such as “Brown” for UPS, or a short sound clip, such as the familiar NBC tones.
In this regard, trademark covers things that could not be protected by copyright. Titles, business names and most logos lack the needed level of artistic expression to qualify for copyright protection. They are simply too short and are not unique enough to qualify. However, trademark doesn’t protect a mark from all uses. For example, I can talk about my experience with Toyota cars all I want in this blog post, but I can’t sell my own line of cars under the Toyota name.
The reason is trademark only protects against uses that cause confusion in the marketplace. This even enables companies to have the same trademark so long as they are in separate businesses. For example. Delta is both an airline and a faucet company. Likewise, Ace is both a hardware store and a brand of bandages. In both of those cases, since the market is drastically different and the likelihood of confusion is practical nonexistent, the businesses can use the same marks without problem.
This means that, unlike copyright, you have a pretty broad leeway as to what you can do with a trademark on your blog. You’re free to write about trademarked products, use images of company logos and even have a trademark in your blog’s name or domain, all so long as they don’t cause confusion.
However, this doesn’t mean a blogger can’t run afoul of trademark law. For example, if you set up a blog on software that’s the same as a company that actively sells software, you could be in trouble. It’s important, with every use of a company’s trademark, that you ensure that your use of it is not going to cause confusion. Many sites, such as The Unofficial Apple Weblog, have gone to great lengths to eliminate confusion when blogging about trademarks and using them in their name.
Confusion and Overlap with Copyright
Unfortunately, trademark law is often confused with copyright law. We routinely hear that a company is trying to “copyright” a certain slogan or their name when that simply isn’t possible. Copyright does not protect slogans, names, titles, etc. and businesses are usually protecting their trademark, not their copyright in such interests (though some do make dumb mistakes).
As you can see above, the connotations of something being protected by trademark and by copyright are very different. For example, if UPS could copyright the color brown, they could stop all designers from using the color, save what would be allowed under fair use. However, as a trademark, they can only stop competing package delivery services from using the color to promote themselves.
That being said, there is at least some overlap between trademark and copyright, in particular in the area of logos. Some logos, for example the Coppertone Girl and the Dutch Boy logos, are artistic enough to qualify for copyright protection outside of their use as a trademark.
A similar issue arises with fonts. Fonts are computer files/programs that create at typeface. A typeface itself, generally, is not considered copyrightable though a font is, at least when it is scalable, which most are. So, though a company can’t necessary copyright the typeface that a logo or other trademark element uses, it can certainly copyright the font used to create that typeface and control it’s use that way.
That being said, most logos and logo elements are based on common design elements that can not be copyrighted. Thus, they qualify for trademark protection alone.
All in all, trademark is not nearly as scary of an area of law as many make it out to be. For the most part, as a blogger, there isn’t much to fear nor much danger to be found.
So long as you don’t use trademarks in a means that would cause confusion in the marketplace, you should be fine. This means you’re free to use trademarks in your posts, titles, etc. so long as you have some legitimate reason to do so.
The truth is that, despite bloggers using trademarks in their sites constantly, very few bloggers are actually threatened under the law and most of those cases deal with gray situations, such as a blogger creating an unofficial blog for a company but not doing enough to make it clear that it’s not related to the company.
If you have any doubt, just put yourself in the shoes of a regular visitors, one who knows nothing about your site, and see if they would find the use confusing. If even that doesn’t help, consider asking a trademark attorney to get their opinion on the matter.
Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for Freelance Writing Jobs). This column will be determined largely by your suggestions and questions so let me know what you want to know about.
I am not an attorney and nothing in this article should be taken as legal advice.
Jonathan Bailey writes at Plagiarism Today, a site about plagiarism, content theft and copyright issues on the Web. Jonathan is not a lawyer and none of the information he provides should be taken as legal advice.
Great piece for those who are writing, and need to be aware of the legal ramifications of trademark law.
Nice post. Thank you for sharing this.
So, as a blogger, are we required to add the registered or trademark sign next to every business name? Or can we just write the name of the business?
Hey , I loved the details – Does anyone know where my business would be able to locate a fillable CMS 1500 copy to work with ?
I just created a blog called toobrokeforprada.com.
It is a fashion blog about affordable fashion hence the name.
Since Prada is a world renowned fashion brand, would my domain be considered trademark infringement?
Thanks for any help!
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