How do I 'copyright' my company's name?

By Benjamin Craig, filmmaking.net

Copyright law is designed to protect intellectual property in expressions of creative works including books, music, drama, art, sound recordings, films and videos, and broadcasts. It cannot be used to protect ideas, rather it protects the way the idea is expressed in a piece of work. For example, you cannot copyright the rules for a game of chess, however you can copyright a book you have written outlining the rules of chess, since the book is the "expression" of the idea.

In terms of company names, these do not fall within the scope of copyright law at all, so you can't "copyright" them. If you are asking this question, what you are really asking is, "how do I stop other people from using my company name?" Unfortunately there is no one simple answer to this question because it involves several areas, and the higher the degree of protection you want, the more money you will need to shell out. Consider the following areas as a starting point:

Register Your Company
In most countries, it is possible to register your business with a state or national government authority. Business names can only be registered if they are significantly different from any other name that exists in the authority's database. For example, if "XYZ Film Company" already exists, the authority is unlikely to let another company come along and register the name "XYZ Films". So registering your business offers some form of name protection. You should however, be aware that this protection only exists for the authority you register your business with. It does not protect your name from being registered with a different authority (i.e. in a different state or country). If you want that level of protection, you need to register your business with the relevant authority in each territory you would like protection for. This is where it starts becoming costly. More information on registering a business can be obtained from your state or federal government department of commerce (sometimes also called "trade and industry").

Trademarks
A trademark is any sign which can distinguish the goods and services of one trader from those of another. A "sign" includes words, logos, pictures, or a combination of these. Basically, a trademark is a badge of origin, used so that customers can recognise the product or service provided by a particular trader. To be registrable your trade mark must be:

  • distinctive for the goods or services which you are applying to register it for; and
  • not deceptive, or contrary to law or morality; and
  • not similar or identical to any earlier marks for the same or similar goods or services.

Trademarks also cannot be generic words or phrases. For example, you couldn't trademark the word "house" or the number "1" because they are generic. Indeed, the existence of the word "Pentium" as a product name for Intel's CPU range came about from the inability of that company to register trademarks on the names for its earlier chips: 286, 386, and 486.

Trademarks are normally registered at a national level by a dedicated government department:

USA - US Patent & Trademark Office
UK - UK Patent Office
Canada - Canadian Intellectual Property Office
Australia - IP Australia

Registering trademarks involves submission fees (and often, lawyers' fees) and most countries organise trademarks by broad industry group. For each industry group you want protection in, you must pay an additional fee, and as with registering a business, trademarks are only protected in the jurisdiction in which they are registered.

Finally, trademarks must be defended, otherwise they can be invalidated. This means that if you are granted a trademark and you come across someone who is using that mark themselves (or something which could be mistaken for your trademark), you are obligated to advise them that they are allegedly infringing your trademark, and if they continue to do so, you will need to take legal action to defend it. If you do not defend you trademark, it can automatically enter the public domain and you will lose any rights you have to it.

Registering and maintaining trademarks can be a complex area, so it is highly recommended that you seek professional advice before going down that route.

Other Options
Other than registering your business and obtaining trademarks, there really aren't any other "standard" options for protecting your company name. If you find another company trading with the same, or a very similar name, you might be able to get a court to force them to change their name if you can convince the court that a) your company name was registered first, and b) there is a significant risk that your customers will be confused by the existence of the other company. However, the chances for success down this route are fairly slim, and the legal fees involved will be considerable.

For a comprehensive list of FAQs on copyright, check out the site of entertainment attorney Mark Litwak.

Last updated 2-Oct-2009

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