Understanding Brand Protection: 5 Unprotected Creations

Brand Protection

What Does Brand Cover?

In order to qualify for brand protection, an original creative work must exist in a palpable form—written down or in a form that can be touched. So, you’ve crafted that next potential hit song, formulated a slogan set to sell millions, or devised a creation that outshines even the most powerful innovations—now the question arises: can you brand them? Let’s delve into the five surprising effects that you cannot brand, and what you can.

Understanding Brand Protection

According to the US Copyright Office, brand protection, outlined in title 17 of the U.S. Code, section 102, extends exclusively to original works of authorship fixed in a tangible form—a copy. “Original” implies that the author produced the work through their intellectual effort, distinct from replicating an existing work. Brand protection might encompass a description, explanation, or illustration, provided it meets the conditions of brand law.

What’s Not Covered by Brand Law?

  1. Ideas, Styles, or Systems

Ideas, styles, and systems, as per the U.S. Copyright Office Circular 2, remain outside the scope of brand protection. This encompasses a broad array of items such as:

  • Making or constructing items
  • Scientific or technical principles or discoveries
  • Business operations or procedures
  • Mathematical principles
  • Formulas, algorithms
  • Any other conception, process, or system of operation
  1. Commonly Known Information

This category includes information widely considered common knowledge without attributed authorship, such as statements like “The sky is blue.” Examples encompass:

  • Standard timetables
  • Height and weight charts
  • Telephone directories
  • Tape recording measures and rulers
  • Lists or tables derived from public documents
  1. Choreographic Works

Choreographic works, original or not, lack brand protection unless documented or notated. Similarly, speeches untranscribed before or after delivery and other unrecorded performances fall under this exemption.

  1. Names, Titles, Short Phrases

Distinctive phrases, titles, or short expressions, though not covered by brand protection, may qualify for trademark protection if related to your business, goods, or services. This includes:

  • Names
  • Titles
  • Short phrases
  • Product descriptions
  • Aliases
  • Workshop titles
  • Business names
  1. Fashion

Fashion items like clothing or accessories aren’t covered by brand law, as they fall under “useful articles.” While specific fabric patterns may be brand-protected, the actual clothing or accessories generally aren’t. Notably, designs cannot be copyrighted but can be patented.

For more detailed information, visit the U.S. Copyright Office or learn how to protect your creations.

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