You worked tirelessly to create your original artwork, now you must consider the business side of your art -- creating a brand. Brand your art with a trademark, a unique identifier that separates you and your artwork from other artists and their work. In the U.S., you get trademark rights by use in commerce, not registration. However, trademark registration has several legal advantages, including exclusive rights of use and the right to sue.
Create a trademark. Under U.S. trademark law, a trademark is a word, phrase, symbol or design that identifies a product and its source. Your artwork is the product and you, the artist, are the source. Your real name is probably not unique, but consider using your initials written in a particular design like a monogram, or create a pseudonym. Alternatively, create a logo or symbol to identify your art like the Nike swoosh identifies Nike products.
Read More: How to Trademark an Idea
Conduct a trademark search. To get rights in a mark, U.S. laws require you to actually use your mark in commerce and have it associated with you in consumers' minds. Search the U.S. Patent and Trademark Office registered trademark database for availability. You do not want to use a mark and build a following only to discover your mark belongs to someone else, which could be legally, and therefore financially, disastrous. You could even be prevented from selling art you’ve already created that bears the trademark in question.
Conduct a “use” search. Beyond a trademark search, a “use” search can be performed by a trademark search company for a higher fee. In the U.S., trademarks are based on commercial use, not registration. Accordingly, use of your trademark could violate another’s rights even if he never applied to register the trademark.
Register your trademark. The USPTO recommends that you file your application electronically through its Trademark Electronic Application System. You can upload or generate an image of your mark through TEAS and pay your filing fee. The TEAS Plus application has a lower filing fee, but stricter requirements. If you do not have Internet access, you can access TEAS at any USPTO Resource Center. To obtain a paper application, call the USPTO Trademark Assistance Center.
Your trademark may not be identical to another or confusingly similar in name or context.
If you have not yet used your mark in commerce, but intend to use it in the future, you must file under the “intent to use” basis, which will require filing an additional form and fees.
You can use the “TM” designation to provide public notice of your claim of ownership of the mark, regardless of whether you have filed an application with the USPTO. If your real name is available and already associated with your artwork in the public’s mind, you may be able to trademark it.
Based in the Washington, D.C. area, Angela Floyd is an intellectual property, consumer and business law attorney. Floyd holds a Juris Doctor from Georgetown University Law Center as well as a Master of Arts in English and political science from Case Western Reserve University.