April 9, 2020 | Written By Nicole Gaither
With COVID-19 forcing an increasing number of people to work from home, and many employees finding themselves either furloughed or laid off, there is an increase in the number of “side hustles” becoming “main hustles.” A significant amount of time is being devoted to work from home businesses – launching new businesses, moving brick and mortar businesses online, and increasing online presences of existing businesses. With more time now available, there are more complaints of unauthorized copying and use of protected content, images, websites, slogans, logos, and in some cases, total and complete brand theft.
If you have not had your work copied, then take this as your BOLO notice. While I hope it does not happen to you, it could be a matter of when versus if since more and more of us are moving to online and virtual spaces. Gone are the times where your work was just noticed by those who visited your brick and mortar store or gallery. Because of the internet and more accessibility, it has become easier for people to be “inspired” and cross the line from simple inspiration to outright copying and infringement.
So what can you do to make sure your creative hard work (content, products, or services) is still noticed while protecting your work and securing your rights?
1. Take this time to register and protect your work if you have not already done so. For brand aspects – business names, logos, slogans – consider trademark registration. If you are selling services or products nationwide, now is the time to invest in federal trademark registration. And if you have creative content such as artwork, photographs, websites, content for programs, and ad copy, focus your efforts on registering your copyrights.
Protecting your work is not as expensive as you might think. There are resources available at all price points. If you are a DIY-type and have the time (and patience), both websites for the USPTO – the United States Patent and Trademark Office (link here) – and the U.S. Copyright Office (link here) have resources available to guide you through the process. (Note: This is if you have the time and patience. It is also only if you have something that is deemed fairly straight-forward and unique that you are sure is not infringing on someone else’s work.)
If located in an area where there are pro-bono resources still active and available (such as a volunteer lawyers’ association), you can apply to obtain legal services to assist with registering your copyrights and trademarks. These resources are generally reserved for those who qualify as low income.
For those of you who do not have the time or patience to learn a new area outside of your main job and don’t qualify for pro-bono resources, you should contact an intellectual property attorney (one who is focused on trademark, copyright, and/or patent protection). Yes, it is an investment. But trying to recover your work after an infringement or theft costs a lot more. (And it also costs you on the flip side – do you even know if you own this brand, name, or content that you are marketing?) So yes, it’s worth it. And if you don’t think so, ask yourself how valuable your work is to you. That should help you decide.
2. Enforce your rights. You should always be looking for unauthorized use of your brand online. It’s yours, right? If you do not enforce your rights, you could lose them. If your work is registered, you have several options available to you. However, your options are limited if your work is not registered.
a. Whether your work is registered or not, you might be able to handle this on your own if you feel confident enough that you can prevail. If you have contact information for the entity that is using your work without permission, reach out to them. Remember, you can catch more flies with honey in some cases!
b. If your work is registered and the infringement took place online via a social media platform, complete the appropriate form to report the infringement with the platform. While this is an option for registered and unregistered works, Facebook, Instagram, and Twitter will not take action unless they have proof that a work is registered.
c. If copyright-protected work was infringed, you can send a written “DMCA Takedown Notice” to the service that hosts the offending website or to the internet service provider of the infringer.
d. If your work is not registered, you should contact an attorney who can discuss your options and the best course of action, including, but not limited to registering your work.
Finding your work being used by another entity without your permission is no party. But now you know that if (and unfortunately, when) it happens, you have recourse and can protect your intellectual property.
Nicole Gaither is a Partner with Parlatore Law Group and practices in the fields of copyright and trademark prosecution, in addition to tax law. She has demonstrated experience in prosecuting domestic trademark and copyright applications, providing brand protection through trademark monitoring, reviews of refusals, responses to refusals and assessing potential marks for use and availability. For more about Ms. Gaither, click here.
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