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How to copyright a name for free?

Published in Trademark Protection 4 mins read

You cannot copyright a name for free, as names, titles, slogans, and short phrases are not typically protected by copyright law. Copyright protects original works of authorship like books, music, or art. However, if your goal is to protect a name used for a business, product, or service, you are looking at trademark law. While you cannot register a trademark for free, you can establish a form of protection known as a common law trademark simply by using the name in commerce.

Understanding Intellectual Property for Names

Before diving into how to protect a name for free, it's crucial to understand the distinction between copyright and trademark:

  • Copyright: Protects original literary, dramatic, musical, and artistic works (e.g., books, songs, sculptures, films, software code). It does not cover names, titles, short phrases, or slogans.
  • Trademark: Protects words, names, symbols, sounds, or colors that identify and distinguish the source of goods or services from those of others (e.g., brand names, logos, product names).

Therefore, when you want to protect a name for your business or product, you're dealing with trademarks, not copyrights.

Establishing a Free Trademark: Common Law Rights

You cannot register a trademark for free with a government office (like the U.S. Patent and Trademark Office, or USPTO). However, you can acquire common law trademark rights simply by using a name in commerce to brand your products or services.

What is a Common Law Trademark?

A common law trademark is established automatically through the use of a name in connection with specific goods or services. It is free and does not require any formal paperwork, forms, or registration fees.

How Common Law Rights Are Created:

  1. Actual Use: Begin using the name consistently in connection with your goods or services. This means putting the name on your products, packaging, marketing materials, website, or storefront.
  2. Public Association: The public must come to associate that specific name with your particular goods or services.

Benefits and Limitations of Common Law Trademarks:

While common law trademarks are free and easy to establish, they have significant limitations compared to a federally registered trademark:

Feature Common Law Trademark (Free) Registered Trademark (Paid)
Establishment Automatic through use in commerce. Requires application and approval by a government office (e.g., USPTO).
Geographic Scope Limited to the specific geographic area where the name is actually used and recognized. Nationwide protection across the entire country.
Legal Presumption No legal presumption of ownership or validity. You must prove your rights in court. Legal presumption of ownership and exclusive right to use nationwide.
Damages/Remedies Limited ability to recover damages in infringement cases; no statutory damages. Stronger legal remedies, including potential for treble damages and attorney fees.
Public Notice No public record of your claim. Public notice of your ownership, deterring potential infringers.
Use of Symbols Can use "™" (for goods) or "℠" (for services) to indicate a common law claim. Can use "®" once registered.
Cost Free Involves application fees, legal fees (if using an attorney).

Practical Steps to Strengthen Your Common Law Rights:

If you are relying on common law rights, consider these actions:

  • Consistent Use: Use your name consistently and prominently on all your branding materials, products, and services.
  • Documentation: Keep records of your first use of the name, marketing materials, sales figures, and any evidence showing public recognition.
  • Online Presence: Establish a strong online presence (website, social media) using your name to demonstrate active commercial use.
  • Competitor Search: While not required, conducting a basic online search for similar names can help you avoid inadvertently infringing on someone else's existing common law or registered rights.

When to Consider Registering Your Trademark

While common law rights offer free, albeit limited, protection, they are generally insufficient for growing businesses. As your business expands, it is highly recommended to pursue federal trademark registration with the USPTO (or equivalent body in your country). This provides:

  • Nationwide Protection: Exclusive rights across the entire country, regardless of where you currently operate.
  • Legal Presumption: A strong legal basis for enforcing your rights against infringers.
  • Public Notice: Your registration serves as public notice, deterring others from using similar marks.
  • Ability to Sue in Federal Court: Easier access to federal courts for infringement claims.

Although federal registration involves fees and a formal application process, the enhanced legal protection it offers often outweighs the initial investment for a serious business.

In summary, you cannot copyright a name for free. However, you can obtain a common law trademark for a name for free simply by using it in commerce to identify your goods or services, though this protection is geographically limited and less robust than a registered trademark.