Podcasts continue to grow in popularity. If you’re a podcaster, or you’re thinking of launching your own podcast, what do you need to know about trademarks? I’ve put together some Podcast Trademark Tips to help keep podcasters out of legal trouble and guide them towards brands that they can own and protect.
A few months ago, I wrote the blog post “Can I Play Music on my Podcast?” That post addressed one of a variety of copyright issues that come up in the podcast world. Now it’s time to turn to trademarks.
Quick review time: a trademark is anything that identifies you as the source of goods or services. Trademarks commonly include brand names, product names, logos, and tag lines.
Most likely, the highest priority will be the name of your podcast. That’s your trademark.
Or is it?
Probably the #1 most important tip is this: trademark rights go to the first person to use that mark for similar goods or services.
That means that if someone else has already used that name – or a similar name – for a podcast, that person is going to have superior legal rights even if she never registered the trademark.
Now, trademarks don’t necessarily last forever. The rule is simple: use it or lose it. If you haven’t used your mark “in commerce” for three years, you are generally considered to have abandoned the mark. That means that someone else may have the right to use it. However, you should be careful when adopting a previously-used trademark – there are some pitfalls here, so unless and until you consult a qualified trademark lawyer, you’re best advised to stay away from brand names that have been used before in that context.
A few other commonly misunderstood points:
- Owning a domain name does not necessarily give you rights to use that name as a trademark for your goods or services (podcasting, in this case.)
- The law generally treats words or phrases that sound similar as the same trademark. So if your podcast shares a name with another podcast, but you spell yours differently, you still have potential trademark issues. For example, if I called my podcast Nyrdest, that would create a conflict with Nerdist, even though the spellings aren’t identical. The names have to be visually and audibly different. Which makes particular sense for an audio medium, if you think about it.
- For more tips on choosing a strong trademark, check out my slide presentation on the subject. It’s called, coincidentally, How Do I Choose a Strong Trademark?
OK, I’ve Got a Name, Now What Do I Do?
You might want to consider registering the mark with the United States Patent and Trademark Office and/or the trademark offices of other countries where your podcast is heard. Registration provides a variety of benefits, including a legal presumption that you’re the rightful owner of the mark. This just means that in the case of a dispute, you have the benefit of the doubt on your side. That might not sound like much, but it’s a fantastic type of insurance to have in the case of a legal conflict.
Before proceeding with a trademark registration, be sure to talk to an intellectual property attorney; there are a lot of hidden pitfalls in the process. If you’re going to invest the time and money, you want it to be done right. A 2013 study revealed that US trademark applications filed by attorneys were 50% more likely to succeed than those filed by non-attorneys (or, as I like to call them, “real people.”)
The Next Question to Ask Is: What Else Might You Do With This Brand?
Let’s say your podcast is a success and you have the opportunity to expand this brand into other media. The same trademark rules we discussed above will apply. So, if there’s any possibility that your podcast might become a brand for other types of goods or services, you want to make sure that the name is “cleared” in those categories as well.
Take a moment and fantasize about what spinoff goods or services your podcast might turn into: a book? Webinars? A YouTube series? Public speaking or hosting conferences? You never know – a fiction podcast might turn into a movie or TV show; a business podcast might turn into a consulting service.
It would be a shame if you never have the chance to leverage your brand in another medium because someone in that space is already using your name.
I know this can make it more difficult to find a unique brand name that conveys the spirit of your show. My goal here isn’t to scare you, but to provide you with some valuable tools, and, hopefully, help you avoid legal conflicts.
Don’t worry: there are plenty of potential names out there. When podcasts were first getting started in the early 2000’s, who would have predicted one of the biggest successes of the medium would be called WTF? And Serial – isn’t that a high-carb breakfast food?
The moral of the story is that you’re better of picking a name that’s free from legal conflicts rather than a name that “just sounds perfect,” but someone else is already using.
Other Potential Trademarks
Once you’ve got your podcast name sorted out, it’s time to start thinking about other trademarks you might be developing. Your logo might be a trademark, if it identifies your brand as the source of goods or services. You might have catchphrases. Maybe you’re starting a podcast network, and each show has its own name…if so, go back to the beginning of this post and start over again.
Congratulations: you’re creating valuable intellectual property. Now hit “Record” and start podcasting. And don’t forget to send me a link to your show; I’m always looking for great new listening content.