This Scribble Kibble episode is educational but it is not legal advice.
I thought it would be enough to cover the two most important legal concepts for artists:
copyright and fair use, but no, no it wasn’t enough, so here we are again ready to learn
how to play Trademark!
The expensive game.
The reason I didn’t talk about trademark before is because it is fairly useless for
small artists.
You become interested in trademarking things once you are serious enough to register your
art business with the government.
If that doesn’t describe you, then you benefit more from COPYRIGHT, which automatically protects
each work of art you make.
TRADEMARK only protects your logo.
Technically it protects your brand, but most trademarks are for either a logo or a product
name.
So don’t plan on trademarking a character, because it isn’t going to happen unless
the character is a literal part of your logo.
While I set up my fake board game here, note that this is the United States version.
Every country’s laws are different, but the purpose of the law is so that a competitor
can’t show up and use the same name, or a similar name, to try and confuse customers
into buying their item.
It would be very confusing if there was another YouTube, or a UTube, or five different Disneys
that all make animated movies.
Trademark tries to prevent this from happening.
Let’s take a look at the trademark rulebook.
First, you do not automatically get a trademark just because you used a name once or twice.
You have to establish a trademark and constantly use it to keep it.
A piece of art you drew?
EEEE, not trademarkable.
The name of one of the characters in your book?
EEEE.
The unique username you use to sell all of your art under?
Ding ding ding, you might be able to trademark it!
Second, your trademark only covers your market.
If somebody starts manufacturing heavy construction equipment and decides to label it Scribble
Kibblers, there’s nothing I can do to stop them.
I could go after anything entertainment related: videos, comics, art.
There has to be a chance for confusion.
If your competitor is in a completely different market, your trademark has no legal power
over them.
Usually.
Third, your trademark is only protected in a set geographical area.
If you make and sell Scribble Kibble shoes in Indiana, I could still make and sell Scribble
Kibble shoes in Ohio, unless you register and defend your trademark at the national
level.
But that wouldn’t stop me from making and selling Scribble Kibble shoes in Canada.
For this reason companies register their trademark in every single country important to them.
It gets expensive and paperwork crammed very fast.
Four, very famous marks like Disney and Skittles have completely different rules applied to
them.
You won’t be able to use very famous names in any trademark, so don’t bother.
Fifth and final rule, in the US you do not need to register a trademark with the government
to be protected.
But people who register their marks win versus people who don’t most of the time.
Okay, let’s play.
Who do you wanna be?
All of these companies are going to try to get their trademark registered.
We’ve got:
Art Prints, who makes printed artwork
Wonky Comics, makes comic books
Tonka Estelle, a pen name used for years to publish fantasy novels
Kikiruckurr Entertainment, makes animated movies and toys of the characters in them
Ackbud Music, makes music
Stupid Cartoon Wolf, makes handmade arts and crafts
(Name Uniqueness) First move.
You have to prove your name is trademarkable.
You pass if your name is one of the following: Fanciful.
A made up word.
(Kikiruckurr, Ackbud) Arbitrary.
Has nothing to do with your product.
(Stupid Cartoon Wolf) Suggestive.
Describes the product, but in a creative way.
(Wonky Comics) Established.
Has a long, exclusive history of public use.
(Tonika)
You fail if your name is generic.
Art Prints, your name describes your product.
Art prints is exactly what you are selling.
You lose.
Be more original next time.
Add a creative word, like “Zingzang Art Prints.”
(Existing Trademarks) Second move.
Roll the dice, because there’s a high chance somebody is already using the name you thought
was original, even if you made up a word.
If you don’t roll an eight or higher, I’ll make up some reason you can’t register.
Wonky Comics, turns out there is a Wonkie Graphic Novels spelled with an ie registered
at the USPTO.
You lose.
You cannot register a trademark if somebody has a registration at the USPTO that sounds
similar or looks similar to your name.
It does not need to be an exact copy of your name.
(uspto.gov)
Ackbud Music, you type “ackbud” into google and get two million results.
Ackbud was a word you made up, but it turns out some random company thought of it first.
Even if you could trademark your name in a different market, you don’t want to live
your life under their internet shadow.
Go back to square one and come up with a new name.
Stupid Cartoon Wolf, you type your name into google and find a person who made a twitter
and tumblr under the name Stupid Cartoon Wolf, but they don’t sell any goods or services.
You can register a trademark if the name shows up on a quick internet search, but it’s
not being used in a way that grants it trademark.
Say it’s the title of a single piece of non-famous art, or an abandoned username that
was never used to sell services or products, or the name of somebody’s pet, or a non-distinctive
name in a book.
Regardless, you take a risk if somebody is actively using the name you want to register.
The more powerful and established the company or person using the name you want is, the
bigger the risk you take.
Even if they haven’t registered an official trademark, a company using a name has common
law rights to it.
Stupid Cartoon Wolf decides to take a risk that the twitter user is unlikely to hire
a lawyer and sue them now or in the future, and even if they did, that it would be unlikely
they would win the case.
Keep playing.
Money stop!
Everybody pays at least $250 to start the application process.
Kikiruckurr, you want to sell animations and toys, so you need to apply for two trademarks.
That’s $500.
Tonika Estelle, you’ve got money saved up from publishing all those books.
Trademarking a pen name is extremely difficult.
Hire a lawyer to deal with your application.
Great.
You registered.
Now you have to wait at least eight months, and the whole time argue either with the USPTO
about why you deserve the mark, or fend off people who come out of the shadows to file
a counterclaim against your pending registration.
Tonika Estelle - Office Action.
The USPTO says the name of a person is not trademarkable.
But guess what?
You hired a lawyer.
Your lawyer is able to prove you have had long and exclusive use of the name Tonika
Estelle in the literature market.
The USPTO accepts the argument and you’re free.
Kikiruckurr - Lucky Duck.
Nothing.
Your name is so unique there is nothing else like it, you filed your applications correctly
and did all of the paperwork the USPTO asked for on time.
Stupid Cartoon Wolf - Office Action.
Hey, you get a letter from the USPTO.
Turns out a jewelry company named Stupid Cartoon Lobo is already registered.
Lobo in Spanish means Wolf.
Well, you didn’t hire a lawyer, and you’re not sure how or if you can argue back on this,
so you lose.
Back to square one for you, $250 poorer.
Hey look, we’ve got two winners!
In the United States, Kikiruckurr can make animations
and toys without worry of competitors stealing their name.
Tonica Estelle can keep publishing fantasy books without worrying someone else is going
to use the same name to publish knock off books.
I mean, people can still infringe, but you can easily destroy them if you have a registered
mark.
Unless the infringer can prove they established the same trademark and have been using it
since before you did.
There you have it.
That’s the simplified version of how to play Trademark.
It’s an even more messy battle of money and lawyers than copyright is.
So, have fun!
You finished the trademark lesson.
Try the copyright and fair use episodes to learn to protect yourself from big companies
whining about how you used 1 second of their video, and to rescue your original art from
dirty, dirty pirates.
Stay subscribed for a future tutorial on how to fight the fake copyright and trademark
claims you will get if you upload videos on YouTube.
If you haven’t had one yet, just wait.