Copyright or Trademark? Patent or Servicemark?

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This question was sent to me by a Creative Income reader: “Is it copyright infringement if I use a product [brand name/product name] in my business name. For example, “Rubber Duckie Bath Time?” Also, I would like to put a rubber duckie in each product shipped.”

The legal side of any business is serious. Don’t go in without doing a little reading or research.


The above questions are really legal questions best answered by a lawyer, but you could probably ask 5 different lawyers and get 5 different answers. I don’t think rubber duckie or rubber ducky has a copyright, trademark, patent, or servicemark* (the basic legal foundations within business). As long as you are using original artwork, you’ll be fine.* Dropping in a free gift to your customers is a great way to build reputation and customer service. Your questions do lead to some additional questions that I hope the following article will help you understand.

There are many legal terms thrown around in our creative business: copyright, trademark, patent, servicemark. We see all kinds of symbols like @, TM, (SM), and more. We need to know these terms not only for our own business protection, but also so we don’t step on any other businesses’ toes. What is wonderful is that so much can be learned by searching the web! However, when you’ve done your research and even though you may feel you have a good understanding of your legal needs, it is still always wise to consult with an attorney.

Copyright is given for original works of authorship including literary, dramatic, musical, artistic, and certain other intellectual works (this is where varied legal opinions can branch from!). If a work is copyrighted (documented and given by US Copyright Office), it cannot be reproduced, copied, used as a derivative work, publicly displayed, publicly performed, or otherwise profited from.
You are not protected by putting your details in an envelope and mailing it to yourself for an official date. You may get lucky and find a judge who will consider this “poor man’s copyright,” but in a court of law, the only real document of value is one given by U.S. Copyright Office. You must apply and be issued the copyright.

For more information on copyrights, visit


A patent is given for an invention with a term of 20 years from date on which the application for the patent was filed (this is for new patents). It gives the owner the right to exclude others from making, using, offering for sale, selling, or importing the invention. Once the patent is issued, the patentee must enforce the patent without aid of the United States Patent and Trademark Office. There is plenty of fine print in the details of getting a patent, so if you think you have an invention that needs the protection of a patent, learn more at the link listed below.

According to the USPTO, the following describes what can be patented: In the language of the statute, any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law. The word “process” is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term “machine” used in the statute needs no explanation. The term “manufacture” refers to articles that are made, and includes all manufactured articles. The term “composition of matter” relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything that is made by man and the processes for making the products.

For more information about patents, visit

Trademark and Servicemark
A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks.

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the USPTO. The registration procedure for trademarks and general information concerning trademarks is described on a separate page.

The bottom line is you must protect your trademark or servicemark or you’ll lose it! We should be aware of how we use trademarks. For example Styrofoam is a trademark of The Dow Chemical Company. There is a very famous story about how Bayer lost its trademark for “Aspirin” that is very insightful. Click here to read the history.
A trademark/servicemark search should be done before naming your company or products. You can consult an attorney for this or take advantage of free trademark searches on the web. Ultimately, a lawyer should be consulted to avoid unforeseen problems in the future.

*Important Disclaimer: I am not a lawyer and all legal decisions should be made with full understanding of the legal terms that can be best explained by an attorney.

By: Maria Nerius, Resident Craft Expert
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  1. Darlene Fields says

    So I am curious. All of the patterns on ebay that are not originals, but individuals patterns from Annie’s Attic or individual patterns from old magazines like Plastic Canvas; are they legal to sell like that. I realize that if you buy a pattern book and then decide to sell it at a yard sale or on ebay, you can do that, but can you pull the individual patterns and sell them?

    • maggie says

      You can pull individual patterns from books and resell them because the book itself was purchased initially making it your property. What you do after that is a different story. What you CANNOT do is make the patterns from those books and sell them for profit if they have copyrights still attached to them. I hope that clears things up!

  2. Sandra Fann says

    I design greeting cards. Recently I was notified to remove a card for trademark infringment.
    This was a card, a single card,that had the words “Have you heard, someone is turning 60”, on the front.
    I was contacted by a company called “Have You Heard Inc. I was told the card was trademark infringement. The card in no way resembled anything like their logo and I was not using their name as a brand, only as a part of the sentence, and I had no idea there was even a company by that name.
    I really don’t think they had a right to demand that I remove my card from the internet. But rather than kick up a fuss, I did remove it.

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