Trademark: What's in a Name?

by Shekinah Apedo

You're a wildly successful up and coming crypto artist who wants to diversify your brand from art to clothing, you print your name on a shirt or a hat, then sell it to fans online. With that sale, you've established a common law trademark for your name. What's in a name? The nickname you go by to sell your art is your 'brand' name. It's the name that identifies this is a Fewocious, Beeple, or Hackatao NFT; this brand name is why your online drops sell out in 5 minutes. It separates the real from the counterfeit and informs your art-hungry fans which is the OG version.

Similar to common law copyright, this kind of trademark is limited in its protection, and only covers: (1) areas where the mark is actually used; and (2) areas where the owner’s business would naturally expand to. You might think, but I'm selling my art online, there's no brick and mortar shop, so I'm covered nationwide. Unfortunately, that's not the case; an advertisement on your website featuring your brand name isn't sufficient to support a federal registration. 

To be federally protected, the artist must file an application for the trademark with the United States Patent and Trademark Office (USPTO). Common law trademark isn't incontestable like federal trademarks. With a registered trademark the artist can: (1) provide evidence of exclusive ownership, (2) file an infringement lawsuit in federal court, (3) receive statutory damages, (4) stop others from using the name, and (5) have the United States Customs and Border Patrol block counterfeit imports.

What's in a name? The artist is the brand name, the brand name authenticates the product, therefore making the artist and artwork two profitable assets of intellectual property. A name with a high value attached to it deserves federal protection. After all, it's the USPTO-registered trademark that acts as the basis for a global trademark with the World Intellectual Property Organization (WIPO). 

The contents of this blog are for informational purposes only and may not be relied on as legal advice.