How to Protect an Artwork Trademark

By Angela Floyd

You worked tirelessly to create your original artwork, now you must consider the business side of your art -- creating a brand. Brand your art with a trademark, a unique identifier that separates you and your artwork from other artists and their work. In the U.S., you get trademark rights by use in commerce, not registration. However, trademark registration has several legal advantages, including exclusive rights of use and the right to sue.

You worked tirelessly to create your original artwork, now you must consider the business side of your art -- creating a brand. Brand your art with a trademark, a unique identifier that separates you and your artwork from other artists and their work. In the U.S., you get trademark rights by use in commerce, not registration. However, trademark registration has several legal advantages, including exclusive rights of use and the right to sue.

Step 1

Create a trademark. Under U.S. trademark law, a trademark is a word, phrase, symbol or design that identifies a product and its source. Your artwork is the product and you, the artist, are the source. Your real name is probably not unique, but consider using your initials written in a particular design like a monogram, or create a pseudonym. Alternatively, create a logo or symbol to identify your art like the Nike swoosh identifies Nike products.

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Step 2

Conduct a trademark search. To get rights in a mark, U.S. laws require you to actually use your mark in commerce and have it associated with you in consumers' minds. Search the U.S. Patent and Trademark Office registered trademark database for availability. You do not want to use a mark and build a following only to discover your mark belongs to someone else, which could be legally, and therefore financially, disastrous. You could even be prevented from selling art you’ve already created that bears the trademark in question.

Step 3

Conduct a “use” search. Beyond a trademark search, a “use” search can be performed by a trademark search company for a higher fee. In the U.S., trademarks are based on commercial use, not registration. Accordingly, use of your trademark could violate another’s rights even if he never applied to register the trademark.

Step 4

Register your trademark. The USPTO recommends that you file your application electronically through its Trademark Electronic Application System. You can upload or generate an image of your mark through TEAS and pay your filing fee. The TEAS Plus application has a lower filing fee, but stricter requirements. If you do not have Internet access, you can access TEAS at any USPTO Resource Center. To obtain a paper application, call the USPTO Trademark Assistance Center.

Protect your brand. Register My Trademark Now
How To Trademark Something

References

Related articles

How to Nationally Trademark a Name

A trademark demonstrates the exclusive right to use a specific mark in trade or commerce. The United States Patent and Trademark Office defines a mark as a symbol, design, word or name or any combination thereof. Although the right to use a trademarked name is established through legitimate use in business, national registration provides additional benefits such as the right to bring legal action against unauthorized use of the name.

Can I Trademark Before I Sell the Product?

Since the federal trademark registration process takes several months, it makes sense to apply for trademark registration as soon as you design your mark while in the initial stages of product development. Your company can file a federal trademark registration application before you sell any products. You can also potentially secure common law trademark rights in your name, logo or slogan through actual use in the marketplace, such as pre-sale marketing. Under common law, a company automatically secures trademark rights once the original mark is used in association with its goods or services offered in the marketplace.

How to Obtain a Trademark for a Food Recipe

You may register a trademark only for the name of your recipe or the name of the food your recipe is describing. Although trademark protection does not extend to the contents of your recipe, registering a trademark to protect the name of your concoction can prevent others from capitalizing on your market recognition. In order to protect the actual method of preparing your recipe, and any creative expression involved in your recipe, you will need to consider trade secret protection, patent law and copyright law.

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