Myths and misconceptions around protecting toy concepts

U.S. attorney and creator of the Protect for Success course Stephanie Pottick dispels three of the biggest myths around protecting toy and game concepts.

If you believe that the world is flat, then maybe this article isn’t for you. But, if you believe in the Loch Ness Monster, Bigfoot and zombies… Well, keep reading because we know those are real, right?!

So, although I might pay to go on a boat tour to find Nessie – I actually have… – I don’t want you to have to pay and find out the hard way about some myths and misconceptions concerning protecting your toy ideas and game concepts.

In this short piece, I want to review a few common ones I have heard from clients and others in our industry…

MYTH #1: I own the copyright if I paid for it – we’re talking about hiring people to create logos, photos, videos, illustrations and more.

Is that true? Do you really own that copyright? I’ll let you think about that for a moment, but while you’re thinking let me share a little story with you.

An entrepreneur hired someone – a graphic designer ­– to create a logo for their new website. Two weeks later, the logo is done, paid for and delivered to the entrepreneur. The entrepreneur posts it on his website, and the response goes through the roof so he decides to put the logo on t-shirts and hats. Sales are going fantastic, but faster than a Yeti running into a snowbank, the graphic designer contacts him demanding more money for the use of the logo on the t-shirts and hats – or face a lawsuit… “Wait, what?!” says the entrepreneur, “I own the logo! I paid for it! You can’t do that!”

FACT: Payment isn’t what matters here – it’s what your contract says. If you don’t have a contract, then the default rule is that the graphic designer owns the copyright. In this case, the graphic designer only gave permission to use the logo on the website but did not give permission to use it for any other purpose.

TIP: Your project may have numerous copyrightable elements, including illustrations, logos, characters and even stories. If you hire someone to help you create these things, make sure you know if you own the associated copyrights, and if you don’t, then what you have permission to do with them.

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MYTH #2 – All I have to do to get a US trademark registration is just file a trademark application with the US Patent and Trademark Office (USPTO).

If only it were that easy! I can’t tell you how many times people have told me they have valid trademark registrations only to find out they don’t.

One example is when a potential client came to me for assistance with licensing his brand. He had a deal in the works and wanted help with the license agreement. As part of our due diligence, I asked whether he had protected any of his intellectual property – he answered that he had a trademark and copyrights. I searched the USPTO database and saw his application but it was abandoned in the system, just like that spooky old house on the top of the hill. It seems he filed an application, but never responded to an office action. Therefore, it never made it to the finish line.

FACT: Filing a trademark application is a process and not a “one and done.” You can’t just file, forget it and hope everything works out. After you file an application, there are many stages it must go through in order to achieve registration status. Sometimes that can take years. Then, if you actually get a trademark registration, you must continue to use it in commerce and maintain it for it to remain active.

TIP: You need to understand the trademark application process so you know how to file, how to get it to the finish line and how to keep it alive. Working with an experienced attorney should make your life easier to do all three.

MYTH #3 – If I file a copyright for my logo, then my name is also protected.

Well, if you’ve filed a copyright, that means you’re probably already off to a great start. But did filing the copyright actually protect your brand name? Is it time to join that next Bigfoot expedition? Before you put those hiking boots on, let’s look a little further.

One day an inventor filed a copyright application for a logo, which included a name in that logo. Although the logo looked nice, it was actually the name in that logo that was going to be part of the cornerstone for the future vision of their brand. The inventor felt comfortable that the name was protected and continued to work on building the project. After all, filing the copyright protected the name, too, right? Just a few months later, the project was taking off, and they learned that it was actually a trademark that protected the name, so they rushed to file a trademark application. Lo and behold, the hair on the back of their neck stood up as if they’d seen a group of zombies ambling through their back yard… Someone had beaten them to the punch and had filed a trademark application before them.

FACT: I see this all the time – no not the zombies – but a simple mistake of not fully understanding what is being filed and for what purpose. The inventor in this case made a mistake that ended up having a huge impact on their ability to protect their brand name.

TIP: Trademarks, copyrights, patents and trade secrets protect different things. Depending on your business situation, it’s important that you understand how they’re different, what each protects and understand that you may want to file for protection using one or more of the IP that’s available.

Now you know!

Understanding fact vs. fiction can make the difference between the success and failure of your business. I hope you’ve learned that sometimes you need to dig deeper to find out what’s true when it comes to legal protections for your ideas.

Go get ’em!

Stephanie.

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**Our Protect for Success™ course can help you figure out what intellectual property you have, whether you own your idea & what to look out for in your contracts. Get the edge. Click on the banner above to learn more.**

Disclaimer: This article is for informational purposes only and not intended as legal advice.

Note from the Author, Stephanie Pottick: I’m excited to share this article with you! I’m a U.S. attorney & course creator who used to work in the toy industry on the business side so I’ve done my share of product creation, protection and licensing and understand them from both the business & legal perspectives. My passion is to educate creators so they can launch & license with confidence. Thanks to Mojo Nation & Brands Untapped for the opportunity to connect with you.

E-mail me @[email protected] – I’d love to hear what you think.

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