Can Coined Terms Be Copyrighted?

by Jennifer Mueller Google
Coined terms are a more appropriate subject for trademark protection than copyright protection.

Coined terms are a more appropriate subject for trademark protection than copyright protection.

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A wordsmith may play with language to create a new term or phrase that he believes was never previously used. However, a term or short phrase by itself is not entitled to copyright protection under U.S. law. Section 102 of the 1976 Copyright Act states that only “original works of authorship” are entitled to copyright protection, and short phrases do not fulfill this standard.

Creativity and Originality

While the U.S. Copyright Office states that titles and short phrases are not entitled to copyright protection, they may be protected if they are part of a larger work. A term or short phrase may become so associated with the larger work in the minds of the public that use of that phrase alone without the author’s consent is considered infringement of the valid copyright in the larger work. Courts examine both the quantitative and qualitative relationship between the phrase and the work as a whole to determine whether a use is infringing.

Trademarks

Coined terms and short phrases are more appropriately the subject of trademark law. Trademarks protect brand names, slogans and logos used in connection with particular products or services. A unique term or phrase used in commerce qualifies for trademark protection. A trademark identifies a source of products or goods, while a service mark identifies a distinct provider of services. For a term to qualify for trademark protection, the author of the coined term must demonstrate he uses or intends to use the term in commerce.

Trademark Registration Benefits

U.S. law does not require trademark owners to register their trademarks with the U.S. Patent and Trademark Office (USPTO) to secure trademark protection. Owners can establish rights based on using the mark in the course of business. However, official registration provides public notice and record of ownership of the mark. Additionally, registration entitled the owner to bring actions concerning the mark in federal court. Registration creates a legal presumption of the registered owner’s exclusive rights to use the mark.

Applications for Trademark Registration

Owners may register their mark with the USPTO online. Applications must list the name and address of the owner and include a depiction or description of the mark. The owner must also specify whether the mark is being used for goods, services, or both. The owner may apply under a broad range of classes of goods and services. For example, an attorney filing a trademark application for her law firm’s logo would file under Class 45, which covers use in personal services including security, social and legal services.