While many small business owners wouldn’t think of spending hundreds of thousands of dollars on a new house and then leaving the front door unlocked while they are out of town, that is essentially what they do when it comes to their valuable intangible business assets. The names, logos, slogans, taglines, publications, artistic creations, etcetera of any business should all be protected to the greatest extent possible via federal trademark and/or copyright registrations. However, this important business necessity is often forgotten or ignored (or, more recently, put to the side because of financial limitations) and businesses often inadvertently leave their valuable intellectual property “unlocked” and open to use or theft by third parties by their failure to acquire adequate protection.
While the new house example in the previous paragraph is presented tongue-in-cheek, it serves to illustrate the importance of protecting the intellectual property associated with one’s business. The statement is often made, “I was always told that I didn’t have to have federal registrations in order to protect my intellectual property.” While it is true that a trademark owner can establish rights based on legitimate use in commerce, owning a federal trademark registration on the Principal Register of the United States Patent and Trademark Office provides several advantages, including: (1) constructive notice to the public of the registrant's claim of ownership of the mark; (2) a legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration; (3) the ability to bring an action concerning the mark in federal court; (4) the use of the U.S registration as a basis to obtain registration in foreign countries; and (5) the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods. Similarly, federal copyright registrations (as opposed to common law or “poor man’s” rights) provide for a number of benefits in addition to having one’s rights a matter of public record- especially in the event of a third party infringement. In particular, registered copyrighted works may be eligible for statutory damages (e.g., plaintiffs who can show willful infringement may be entitled to damages up to $150,000 per work) and attorney's fees in successful litigation—and I can promise you that attorney’s fees are a big deal in a federal litigation under even the best of circumstances.
Finally, it is important to remember that registered trademarks and copyrights are identifiable and quantifiable assets that raise the overall valuation of a business!