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Intellectual Property Protection for Bloggers

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In recent months, The Brand Protected® has noticed an increase in contacts from bloggers wanting to learn more about how to protect themselves, their content and their brand assets. It seems, despite the hardships of 2020, working from home has spurred a flurry of new content creation, which is something we love to see…creatives doing what they do best.

As more and more creators join the blogging universe, it is important to refresh on how bloggers can protect their brands and outputs by paying attention to their intellectual property.

What is Intellectual Property in the Blogging Context? 

The most basic way to think about intellectual property is: 1) Did you make it? 2) Then, it’s yours. Of course, there are infinite complexities within this overarching rule; but, the basic principle remains true. If you take a photograph, or write a blog post, or design a logo, the “common law” rule is that you are the owner. Your “intellectual property” is whatever you create. However, just because you came up with an idea or made a product does not mean that it can be defended using legal channels. These legal channels, such as trademark and copyright protection, require a certain amount of effort on your part to establish 1) that you are in fact the owner of the work or product, and 2) that there is no chance that anyone else could claim ownership over the same intellectual property.

To make things a little easier, let’s break down intellectual property in the blogging context into two categories: IP that can be trademarked and IP that can be copyrighted. A trademark protects identifying marks or information that distinguish a blog from any other. So, this might include things like a blog name, tagline and logo. Copyrights protect works of original content. This might include the actual text of a blog post, artwork, a video, or photography.

So, if you are a blogger, let’s think through what might be included in your intellectual property portfolio.

  • Your Blog Name – Trademark
  • Your Logo – Trademark
  • Your Online Handles – Trademark
  • Uniquely Identifying Hashtags – Trademark
  • Blog Content – Copyright
  • Video Series – Copyright
  • Photographs – Copyright
  • Artwork, Infographics, and Other Visual Content – Copyright
  • Audio Content (like podcasts, etc.) – Copyright
  • E-Books, Downloads, and Other Content Available for Purchase or Offered for Free on Your Site – Trademark
  • And so much more!

There really is no end to the original content that you make and the creative effort you put into your blog, which is awesome! Does that mean that you need to pursue trademark and copyright protection for every single thing you put out there? Nope! We will discuss how to determine what to protect in more detail below.

Do I Need to Trademark My Blog’s Name and Logo?

From the start, the most important intellectual property asset that your blog possesses is its name and logo. Without the blog’s name, no one would know where to find the incredible content! In trademark law, we call this “distinguishability.” What it means is that your blog’s unique name and visual marks make it distinguishable from any other website out there. Readers and followers use the name and logo of a blog to  find and consume content (and maybe even pay you). If you use advertising and/or sponsorships on your blog, you know how truly valuable it is for your readers and followers to know where to find you.

So, if you only take one thing away from this post, it’s this: register your blog’s name and logo with the United States Patent and Trademark Office. But wait, you may be thinking…didn’t we just learn that you own your blog’s name and logo at common law just because you created it? Yes and no. It is extremely challenging to enforce your trademark if you have not registered it with the USPTO. When you submit your trademark application, the examiners at the USPTO will conduct a thorough investigation to make sure that there are no pre-existing trademarks that could be confused with yours. They do this to protect that all-important “distinguishability.” This process can be lengthy so we recommend all businesses (including bloggers) begin brand protection as early as possible. However, once your trademark is registered, you are entitled to statutory protection. The first is that any future applications to the USPTO will be checked against yours. USPTO examiners will not approve a new trademark application if there is a likelihood of confusion with yours. Also, once you are registered, you are able to enforce your trademark. You can do so by sending cease and desist letters to businesses who you believe are encroaching on your intellectual property and you can defend your use of your blog’s name and logo in court, if needed.

Should I Pursue Copyrights for All of My Content?

As you can see from the list above, as a content-creator, you are making original content all the time. All original content can be registered with the United States Copyright Office. However, that many copyright registration applications could become costly and burdensome. On the other hand, failure to register your copyright ownership puts you in a similar position as the trademark issue. Yes, you are the de facto owner of everything you create at common law, but it is very difficult to enforce your ownership of your content in court unless you have registered it with the U.S. Copyright Office. That’s where working with an experienced intellectual property attorney can come in handy. An attorney can help you go through your content on your blog and determine which pieces of original content are the most valuable to you and should therefore be protected. This will depend heavily on your audience, your reach and the goals of your business. Especially unique content, content that was time consuming and costly to create, and content that has a likelihood of going “viral” should be protected as soon as possible.

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