WEBVTT Kind: captions Language: en 00:00:00.170 --> 00:00:05.210 This Scribble Kibble episode is educational but it is not legal advice. 00:00:05.210 --> 00:00:10.380 I thought it would be enough to cover the two most important legal concepts for artists: 00:00:10.380 --> 00:00:15.330 copyright and fair use, but no, no it wasn’t enough, so here we are again ready to learn 00:00:15.330 --> 00:00:17.220 how to play Trademark! 00:00:17.220 --> 00:00:19.250 The expensive game. 00:00:19.250 --> 00:00:23.160 The reason I didn’t talk about trademark before is because it is fairly useless for 00:00:23.160 --> 00:00:24.520 small artists. 00:00:24.520 --> 00:00:28.570 You become interested in trademarking things once you are serious enough to register your 00:00:28.570 --> 00:00:30.740 art business with the government. 00:00:30.740 --> 00:00:35.469 If that doesn’t describe you, then you benefit more from COPYRIGHT, which automatically protects 00:00:35.469 --> 00:00:36.989 each work of art you make. 00:00:36.989 --> 00:00:40.059 TRADEMARK only protects your logo. 00:00:40.059 --> 00:00:44.079 Technically it protects your brand, but most trademarks are for either a logo or a product 00:00:44.079 --> 00:00:45.079 name. 00:00:45.079 --> 00:00:49.079 So don’t plan on trademarking a character, because it isn’t going to happen unless 00:00:49.079 --> 00:00:52.879 the character is a literal part of your logo. 00:00:52.879 --> 00:00:57.559 While I set up my fake board game here, note that this is the United States version. 00:00:57.559 --> 00:01:01.879 Every country’s laws are different, but the purpose of the law is so that a competitor 00:01:01.879 --> 00:01:06.420 can’t show up and use the same name, or a similar name, to try and confuse customers 00:01:06.420 --> 00:01:07.840 into buying their item. 00:01:07.840 --> 00:01:13.700 It would be very confusing if there was another YouTube, or a UTube, or five different Disneys 00:01:13.700 --> 00:01:16.200 that all make animated movies. 00:01:16.200 --> 00:01:17.770 Trademark tries to prevent this from happening. 00:01:17.770 --> 00:01:21.350 Let’s take a look at the trademark rulebook. 00:01:21.350 --> 00:01:27.130 First, you do not automatically get a trademark just because you used a name once or twice. 00:01:27.130 --> 00:01:30.640 You have to establish a trademark and constantly use it to keep it. 00:01:30.640 --> 00:01:32.200 A piece of art you drew? 00:01:32.200 --> 00:01:34.249 EEEE, not trademarkable. 00:01:34.249 --> 00:01:36.170 The name of one of the characters in your book? 00:01:36.170 --> 00:01:37.170 EEEE. 00:01:37.170 --> 00:01:40.090 The unique username you use to sell all of your art under? 00:01:40.090 --> 00:01:43.780 Ding ding ding, you might be able to trademark it! 00:01:43.780 --> 00:01:47.790 Second, your trademark only covers your market. 00:01:47.790 --> 00:01:52.359 If somebody starts manufacturing heavy construction equipment and decides to label it Scribble 00:01:52.359 --> 00:01:55.450 Kibblers, there’s nothing I can do to stop them. 00:01:55.450 --> 00:01:58.750 I could go after anything entertainment related: videos, comics, art. 00:01:58.750 --> 00:02:01.390 There has to be a chance for confusion. 00:02:01.390 --> 00:02:06.350 If your competitor is in a completely different market, your trademark has no legal power 00:02:06.350 --> 00:02:07.850 over them. 00:02:07.850 --> 00:02:08.880 Usually. 00:02:08.880 --> 00:02:13.730 Third, your trademark is only protected in a set geographical area. 00:02:13.730 --> 00:02:18.250 If you make and sell Scribble Kibble shoes in Indiana, I could still make and sell Scribble 00:02:18.250 --> 00:02:23.260 Kibble shoes in Ohio, unless you register and defend your trademark at the national 00:02:23.260 --> 00:02:24.260 level. 00:02:24.260 --> 00:02:27.680 But that wouldn’t stop me from making and selling Scribble Kibble shoes in Canada. 00:02:27.680 --> 00:02:33.349 For this reason companies register their trademark in every single country important to them. 00:02:33.349 --> 00:02:37.250 It gets expensive and paperwork crammed very fast. 00:02:37.250 --> 00:02:43.000 Four, very famous marks like Disney and Skittles have completely different rules applied to 00:02:43.000 --> 00:02:44.000 them. 00:02:44.000 --> 00:02:48.660 You won’t be able to use very famous names in any trademark, so don’t bother. 00:02:48.660 --> 00:02:54.819 Fifth and final rule, in the US you do not need to register a trademark with the government 00:02:54.819 --> 00:02:56.360 to be protected. 00:02:56.360 --> 00:03:01.610 But people who register their marks win versus people who don’t most of the time. 00:03:01.610 --> 00:03:04.020 Okay, let’s play. 00:03:04.020 --> 00:03:06.430 Who do you wanna be? 00:03:06.430 --> 00:03:09.159 All of these companies are going to try to get their trademark registered. 00:03:09.159 --> 00:03:10.159 We’ve got: 00:03:10.159 --> 00:03:12.510 Art Prints, who makes printed artwork 00:03:12.510 --> 00:03:15.090 Wonky Comics, makes comic books 00:03:15.090 --> 00:03:19.680 Tonka Estelle, a pen name used for years to publish fantasy novels 00:03:19.680 --> 00:03:24.739 Kikiruckurr Entertainment, makes animated movies and toys of the characters in them 00:03:24.739 --> 00:03:27.670 Ackbud Music, makes music 00:03:27.670 --> 00:03:30.630 Stupid Cartoon Wolf, makes handmade arts and crafts 00:03:30.630 --> 00:03:39.750 (Name Uniqueness) First move. 00:03:39.750 --> 00:03:42.549 You have to prove your name is trademarkable. 00:03:42.549 --> 00:03:47.480 You pass if your name is one of the following: Fanciful. 00:03:47.480 --> 00:03:49.120 A made up word. 00:03:49.120 --> 00:03:50.860 (Kikiruckurr, Ackbud) Arbitrary. 00:03:50.860 --> 00:03:52.840 Has nothing to do with your product. 00:03:52.840 --> 00:03:55.599 (Stupid Cartoon Wolf) Suggestive. 00:03:55.599 --> 00:03:58.019 Describes the product, but in a creative way. 00:03:58.019 --> 00:03:59.790 (Wonky Comics) Established. 00:03:59.790 --> 00:04:02.520 Has a long, exclusive history of public use. 00:04:02.520 --> 00:04:03.520 (Tonika) 00:04:03.520 --> 00:04:10.150 You fail if your name is generic. 00:04:10.150 --> 00:04:13.390 Art Prints, your name describes your product. 00:04:13.390 --> 00:04:15.870 Art prints is exactly what you are selling. 00:04:15.870 --> 00:04:17.320 You lose. 00:04:17.320 --> 00:04:18.800 Be more original next time. 00:04:18.800 --> 00:04:21.810 Add a creative word, like “Zingzang Art Prints.” 00:04:21.810 --> 00:04:24.780 (Existing Trademarks) Second move. 00:04:24.780 --> 00:04:28.720 Roll the dice, because there’s a high chance somebody is already using the name you thought 00:04:28.720 --> 00:04:30.850 was original, even if you made up a word. 00:04:30.850 --> 00:04:38.090 If you don’t roll an eight or higher, I’ll make up some reason you can’t register. 00:04:38.090 --> 00:04:44.260 Wonky Comics, turns out there is a Wonkie Graphic Novels spelled with an ie registered 00:04:44.260 --> 00:04:45.590 at the USPTO. 00:04:45.590 --> 00:04:47.660 You lose. 00:04:47.660 --> 00:04:52.410 You cannot register a trademark if somebody has a registration at the USPTO that sounds 00:04:52.410 --> 00:04:54.570 similar or looks similar to your name. 00:04:54.570 --> 00:04:57.740 It does not need to be an exact copy of your name. 00:04:57.740 --> 00:04:58.740 (uspto.gov) 00:04:58.740 --> 00:05:03.830 Ackbud Music, you type “ackbud” into google and get two million results. 00:05:03.830 --> 00:05:08.660 Ackbud was a word you made up, but it turns out some random company thought of it first. 00:05:08.660 --> 00:05:12.100 Even if you could trademark your name in a different market, you don’t want to live 00:05:12.100 --> 00:05:14.410 your life under their internet shadow. 00:05:14.410 --> 00:05:18.490 Go back to square one and come up with a new name. 00:05:18.490 --> 00:05:24.480 Stupid Cartoon Wolf, you type your name into google and find a person who made a twitter 00:05:24.480 --> 00:05:31.050 and tumblr under the name Stupid Cartoon Wolf, but they don’t sell any goods or services. 00:05:31.050 --> 00:05:35.370 You can register a trademark if the name shows up on a quick internet search, but it’s 00:05:35.370 --> 00:05:37.290 not being used in a way that grants it trademark. 00:05:37.290 --> 00:05:38.290 Say it’s the title of a single piece of non-famous art, or an abandoned username that 00:05:38.290 --> 00:05:39.290 was never used to sell services or products, or the name of somebody’s pet, or a non-distinctive 00:05:39.290 --> 00:05:40.290 name in a book. 00:05:40.290 --> 00:05:41.290 Regardless, you take a risk if somebody is actively using the name you want to register. 00:05:41.290 --> 00:05:42.290 The more powerful and established the company or person using the name you want is, the 00:05:42.290 --> 00:05:43.290 bigger the risk you take. 00:05:43.290 --> 00:05:44.290 Even if they haven’t registered an official trademark, a company using a name has common 00:05:44.290 --> 00:05:45.290 law rights to it. 00:05:45.290 --> 00:05:46.290 Stupid Cartoon Wolf decides to take a risk that the twitter user is unlikely to hire 00:05:46.290 --> 00:05:47.840 a lawyer and sue them now or in the future, and even if they did, that it would be unlikely 00:05:47.840 --> 00:05:49.900 they would win the case. 00:05:49.900 --> 00:05:51.170 Keep playing. 00:05:51.170 --> 00:05:53.780 Money stop! 00:05:53.780 --> 00:05:58.060 Everybody pays at least $250 to start the application process. 00:05:58.060 --> 00:06:03.570 Kikiruckurr, you want to sell animations and toys, so you need to apply for two trademarks. 00:06:03.570 --> 00:06:05.290 That’s $500. 00:06:05.290 --> 00:06:11.220 Tonika Estelle, you’ve got money saved up from publishing all those books. 00:06:11.220 --> 00:06:14.900 Trademarking a pen name is extremely difficult. 00:06:14.900 --> 00:06:16.820 Hire a lawyer to deal with your application. 00:06:16.820 --> 00:06:17.820 Great. 00:06:17.820 --> 00:06:18.820 You registered. 00:06:18.820 --> 00:06:23.200 Now you have to wait at least eight months, and the whole time argue either with the USPTO 00:06:23.200 --> 00:06:27.820 about why you deserve the mark, or fend off people who come out of the shadows to file 00:06:27.820 --> 00:06:33.330 a counterclaim against your pending registration. 00:06:33.330 --> 00:06:34.880 Tonika Estelle - Office Action. 00:06:34.880 --> 00:06:39.130 The USPTO says the name of a person is not trademarkable. 00:06:39.130 --> 00:06:42.050 But guess what? 00:06:42.050 --> 00:06:43.540 You hired a lawyer. 00:06:43.540 --> 00:06:49.640 Your lawyer is able to prove you have had long and exclusive use of the name Tonika 00:06:49.640 --> 00:06:51.550 Estelle in the literature market. 00:06:51.550 --> 00:06:56.370 The USPTO accepts the argument and you’re free. 00:06:56.370 --> 00:06:58.420 Kikiruckurr - Lucky Duck. 00:06:58.420 --> 00:06:59.420 Nothing. 00:06:59.420 --> 00:07:03.410 Your name is so unique there is nothing else like it, you filed your applications correctly 00:07:03.410 --> 00:07:09.090 and did all of the paperwork the USPTO asked for on time. 00:07:09.090 --> 00:07:11.960 Stupid Cartoon Wolf - Office Action. 00:07:11.960 --> 00:07:14.490 Hey, you get a letter from the USPTO. 00:07:14.490 --> 00:07:19.090 Turns out a jewelry company named Stupid Cartoon Lobo is already registered. 00:07:19.090 --> 00:07:21.100 Lobo in Spanish means Wolf. 00:07:21.100 --> 00:07:26.210 Well, you didn’t hire a lawyer, and you’re not sure how or if you can argue back on this, 00:07:26.210 --> 00:07:27.690 so you lose. 00:07:27.690 --> 00:07:30.380 Back to square one for you, $250 poorer. 00:07:30.380 --> 00:07:33.440 Hey look, we’ve got two winners! 00:07:33.440 --> 00:07:42.520 In the United States, Kikiruckurr can make animations 00:07:42.520 --> 00:07:45.840 and toys without worry of competitors stealing their name. 00:07:45.840 --> 00:07:49.770 Tonica Estelle can keep publishing fantasy books without worrying someone else is going 00:07:49.770 --> 00:07:52.300 to use the same name to publish knock off books. 00:07:52.300 --> 00:07:59.200 I mean, people can still infringe, but you can easily destroy them if you have a registered 00:07:59.200 --> 00:08:00.450 mark. 00:08:00.450 --> 00:08:04.620 Unless the infringer can prove they established the same trademark and have been using it 00:08:04.620 --> 00:08:06.780 since before you did. 00:08:06.780 --> 00:08:08.730 There you have it. 00:08:08.730 --> 00:08:11.930 That’s the simplified version of how to play Trademark. 00:08:11.930 --> 00:08:17.340 It’s an even more messy battle of money and lawyers than copyright is. 00:08:17.340 --> 00:08:18.340 So, have fun! 00:08:18.340 --> 00:08:19.430 You finished the trademark lesson. 00:08:19.430 --> 00:08:23.390 Try the copyright and fair use episodes to learn to protect yourself from big companies 00:08:23.390 --> 00:08:28.090 whining about how you used 1 second of their video, and to rescue your original art from 00:08:28.090 --> 00:08:30.650 dirty, dirty pirates. 00:08:30.650 --> 00:08:34.890 Stay subscribed for a future tutorial on how to fight the fake copyright and trademark 00:08:34.890 --> 00:08:38.719 claims you will get if you upload videos on YouTube. 00:08:38.719 --> 00:08:41.449 If you haven’t had one yet, just wait.