DPP Home Business Trademark Yourself: Part 1

Tuesday, April 6, 2010

Trademark Yourself: Part 1

The key to protecting business goodwill

Ask just about any photographer what area of law protects his or her business, and the answer you’re likely to hear is “copyright.” However, copyright law only protects a photographer’s work product and doesn’t prevent a competing business from attempting to capitalize on the goodwill that the photographer has built with his or her customers. Trademarks are the key to protecting a business’ goodwill and to preventing unfair competition.

Most people don’t realize the impact that trademarks have on our daily life, much less the way that trademarks subconsciously guide consumer-buying decisions. When you purchase soda or fast food, or even over-the-counter pharmaceuticals at the local drugstore, you’re making decisions typically based upon the power that good trademarks inherently possess: You select a brand or product based upon its trademark (e.g., Coca-Cola, Tylenol, etc.), expecting that the product will be consistent with your prior experiences with it. The same holds true for services; if you’ve used an image-archiving service (e.g., PhotoShelter) in the past, it’s reasonable to assume that you’ll receive at least the same level of service when you use it in the future. That’s the real power of trademarks: They embody the goodwill associated with a business and permit customers to make purchasing decisions based upon that goodwill.

Photographers are just as likely to use trademarks as any other type of business. As people become familiar with the quality of a studio’s photographic work and its reputation grows, the goodwill that the studio builds with its customers will be associated with any trademarks the studio has used (regardless of whether the studio or its employees have consciously used the trademark). It may be as simple as people associating the name of the studio or some phrase that the studio has used in advertising, or even simply that its customers have come to associate some trademark with consistent, high-quality, creative photographic work. When this happens, the trademarks used by the studio become tremendously valuable business assets.

A Rose By Any Other Name?
The immortal Bard wrote, “A rose by any other name would smell as sweet.” However, as anyone who has spent the time, money and effort to promote a business knows, name recognition can be critical to the success of a business. That’s where trademarks and trademark law become important, even for photographers.

When Arlington, Virginia-based photographer Liz Vance started using the phrase “Oh Baby Photography” in 2002 in connection with her maternity- and infant-photography business, she understood the importance of branding. However, Vance had an eye-opening experience when another photographer started operating a business using the same mark and nearly identical Internet domain name. According to Vance, “It was the first time I felt I had something to protect.”

A mark—trademarks and service marks are often referred to as “marks” because, from a legal perspective, they’re more or less the same—can be any word, name, slogan, symbol, color or combination of elements that’s used to identify the source or origin of goods or services. In fact, almost anything capable of identifying a source can be a trademark. The key, however, is that the selected mark is capable of identifying a single source.


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