If You Can’t Protect It, Should You Register It?

I’ve had entrepreneurs ask whether they should register their company’s copyrights or trademarks. In deciding that issue, I think it is important for entrepreneurs to ask themselves whether or not they have the resources (time, money, assistance) to defend the copyright or the trademark. If you don’t have those things, is it really worth the time and money to pursue federal registration of your copyright or trademark from the get-go? (That’s not to say that you should never — there will, of course, eventually come a time when you *need* to register your copyright or trademark). If a competitor comes in and infringes your trademark, how honestly useful is a federal registration if the infringer simply says, “Go ahead, sue us”, and you don’t have the resources to sue them?

Don’t forget that as soon as you fix your copyrightable material into tangible form, or establish the use of your trademark in commerce, you obtain a common law copyright or trademark that you can enforce in court — a common law copyright or trademark costs you nothing!

What’s the benefit of federal registration, then, you ask? Federal registration first gives you access to the federal courts (unless the infringer is domiciled in a different state than you and you have damages in excess of $75,000, in which case you are entitled to bring a common law copyright or trademark case in federal court anyway) — federal court dockets are smaller and therefore faster than state court. In addition, federal registration obviates the need to plead that the infringer had actual knowledge of your copyright or trademark, as federal registration automatically establishes constructive knowledge. Finally, federal registration allows you to seek statutory damages for infringement, which can be steep — with a common law copyright or trademark, if you want monetary damages in addition to your injunction to stop the infringement, you need to prove actual damages, that you actually lost money as a result of the infringement.

Also, don’t forget that in many states it may be possible to register your copyright or trademark at the state level — a single state registration is usually cheaper than pursuing federal registration, and carries advantages over the common law version, usually constructive notice and statutory damages. However, obviously, a state registration is only effective in that state and usually for that state’s residents; if someone in the next state over infringes on your copyright or trademark, you’ll have to resort to the common law.

It sounds trite at this point, but when you’re first launching your company, every dollar tends to count. If you’re thinking about federally registering your copyright or trademark, you will need to ask yourself whether registration will be a good investment, whether you will have the resources to make effective use of that registration if and when the time comes.