TRADEMARKS AND YOU – Do you have a YouTube channel or internet show/publication that you produce, edit and upload on a mostly consistent basis? Have you been running the show for awhile with an established audience? Have you made purchases to upgrade the show’s quality such as video and sound equipment or editing software? Did you have to hire an accountant or take a tax class to deal with the tax consequences of running a YouTube channel full time or semi-full time? If your show is just starting out and you’re not even sure if it’s going to be “a thing,” this may not be applicable. However, if the show is generating revenue and you see yourself doing it for the foreseeable future, perhaps it’s time to consider having your show name registered as an official trademark with the United States Patent and Trademark Office (USPTO) or the trademark office in your respective home country of operations. If you’re just using your personal name as your channel name, you’re probably fine. However, if you have some sort of moniker or clever show title, such as The Super Happy Fun Retro Gaming Extravaganza Super Show to the Extreme, hopefully the resources on this page will be helpful.
Why register your mark as a trademark with the USPTO? So that someone else can’t just start their own video series called The Super Happy Fun Retro Gaming Extravaganza Super Show to the Extreme and siphon off or otherwise damage the goodwill you’ve spent years building up for your show, brand and likeness relative to the mark, The Super Happy Fun Retro Gaming Extravaganza Super Show to the Extreme.
Technically if you’ve already been doing business under a specific name for awhile and can show that with paperwork, receipts, sponsorship contracts and invoices, etc. as well as the very existence of your YouTube channel, common law trademark rights are on your side without an official trademark registration. HOWEVER, you will have a lot more pull when you reach out to a platform to submit a trademark takedown request if you already have your name officially registered with the USPTO or the trademark registration office in your respective country. This gives official recognition to your ownership over that mark relative to the goods or services you’re providing. Registering the trademark for your show protects your investment that you have worked so hard to cultivate over the years. If you have already registered your trademark, you can utilize the trademark complaint forms listed at the bottom of this page on whichever platform you see your mark being infringed upon without your permission.
You can attempt to utilize those forms without a federal trademark registration, but most platforms are not going to go out of their way to moderate common law trademark complaints without an official registration and at that point you will need to contact an experienced trademark attorney. In other words if someone else steals your The Super Happy Fun Retro Gaming Extravaganza Super Show to the Extreme show title and you haven’t registered it as a trademark yet, the law still is on your side, but you need to contact an attorney as soon as possible to protect your trademark rights before any further damage is done.
TRADEMARK AND COPYRIGHT LAW LINKS – Here are some links that will hopefully help discern the difference between Copyright and Trademark and how each apply to you and your show or brand. Get to know different terms such as Trademark, Copyright, Class, Mark, Goods and Services, etc.
COPYRIGHT VS TRADEMARK
COPYRIGHT – If someone uploads your work without your permission and calls it their own – either a full copy or portions of one of your videos or just steals your thumbnails, whatever – this would be infringing upon your copyright protection. Now if they’re watching your video in their video and doing some sort of “react” video where they are commentating or critiquing your work, that could technically be construed as Fair Use. Maybe. A good attorney will be able to tell the difference.
TRADEMARK – This is the name of your goods or services – in this case, your show name or “mark.” The Super Happy Fun Retro Gaming Extravaganza Super Show to the Extreme is your trademark or mark in this example. Saturday Night Live, The Today Show, Better Call Saul, Classic Game Room, Gaming Historian, etc. are all federally registered trademarks. Search for them in the USPTO Trademark Database to see their listings for yourself and get an idea of what federally registered trademarks for show names look like. If someone else starts their own retro gaming themed show titled The Super Happy Fun Retro Gaming Extravaganza Super Show to the Extreme, and you have been using that show name for years, now your trademark rights to that mark are being infringed upon even though their content is something they created themselves. See the difference? Their use of the mark creates confusion in your shared market space.
Here is a Barney Level version of how trademarks work. A trademark shouldn’t directly describe the good or service that is being provided. For example, a store that sells apples is not going to be able to get the mark Apple registered as a trademark. However, Apple Computers is transformative in nature in the way Apple represents their branding thus that is a good trademark. Now take for example Friday Night Arcade. If I owned a brick and mortar arcade in Vermont called Friday Night Arcade and attempted to get that federally trademarked, that would face considerable resistance from the USPTO. However, Friday Night Arcade the worldwide online video publication about retro games you know today is an entirely different beast that is very much worthy of being trademarked due to the transformative nature of the services provided (namely Entertainment Services, more on that below). Even though that may seem like a basic name, the transformative nature of the services makes it eligible to be trademarked.
USPTO TRADEMARK DATABASE SEARCH
Search here first to make sure there are no preexisting registrations for marks that are similar to yours that are in a similar registration class. It’s generally probably maybe okay if there are similar registered trademarks for different entities in different classes – so long as one isn’t going to cause brand confusion for the other. For example, a company that produces drill bits called Matrix Drill Bits probably will not cause much confusion with the movie, The Matrix. However, if one person uploads a retro gaming themed show to the web titled The Super Happy Fun Retro Gaming Extravaganza Super Show to the Extreme and he has been doing that for five years, and then out of nowhere someone else uploads a retro gaming themed show to the web titled The Super Happy Fun Retro Gaming Extravaganza Super Show to the Extreme, that is a no-go. Two marks with the exact same name in the exact same class is sure to cause brand confusion. And no, just adding your name to the beginning such as Blast Hardcheese’s Super Happy Fun Retro Gaming Extravaganza Super Show to the Extreme does not do enough to differentiate the two separate entities and there is still a high probability for brand confusion among viewers which means trademark infringement is most likely taking place. The second content creator needs to come up with a different name at that point.
While you’re in the database, search for some other popular YouTube show names – you may be surprised to find several of your favorite shows around the web have already registered for their trademark. This will also be helpful and give you a jumping off point for how to write up your trademark goods and services description when you submit your application.
Submitting a USPTO application is a daunting task. Be prepared to spend a few hours on this. I will say that they have thorough instructions and even helpful videos for every aspect of the application and you can save it and come back later, but this is still an ordeal. There’s also a non-refundable fee of just under $300 depending upon which version of the application you decide to submit. You will need to have a couple of things lined up ahead of time to save yourself a headache.
1. The first date you used your mark and the first date you used it “in commerce.”
Basically when did you upload your first YouTube video using The Super Happy Fun Retro Gaming Extravaganza Super Show to the Extreme as the title? That’s the answer.
2. You will also need to submit a specimen.
No, not that kind of specimen. You’ll need to submit some sort of proof of your trademark in action. A screenshot of your YouTube channel is a good starting point and also if you have a supplemental web site, a screenshot of that as well. You could also submit sponsor invoices and contracts, things of that nature. Beware though that anything you submit will be searchable in a public record online so you should redact any personal information such as street address.
3. You will need to know the Class and have a detailed description of the Goods and/or Services provided by your trademark that you are applying to have registered.
Do you run a YouTube channel? Then you’re most likely in IC Class 041 and you provide Entertainment Services. Every good or service that you provide and wish to trademark is a different class — and you have to submit multiple applications and pay multiple application fees for every class you wish to register. T-shirts would be a different class (and it would be goods) as opposed to a television or YouTube show which would fall under Entertainment Services. One trademark could technically be trademarked to several different classes such as a TV show that also sells supplemental merchandise, etc.
Do a search in the USPTO Database for large YouTuber names such as Jacksepticeye to get an idea of how complex some of these class registrations and descriptions can be. If you’re just running a YouTube channel and maybe a supplemental web site to go along with your material, one class application under Entertainment Services will suffice. Even if you sell some T-shirts or other merch, unless you’re selling a ton of it and worried about someone else also selling coffee mugs with The Super Happy Fun Retro Gaming Extravaganza Super Show to the Extreme printed on them without your permission, just stick with the one class application under Entertainment Services for now.
Here’s an example of the Gaming Historian’s trademark registration from the USPTO Database and his trademark description should give you a good jumping off point for how to write your trademark Goods and Services Description:
IF YOU’RE GOING TO GO THIS FAR, MAYBE LEAVE IT TO THE PROS AND HIRE AN ATTORNEY: If all of this seems daunting or you just don’t want to mess with it, seriously consider just hiring an attorney that deals specifically with trademarks, copyright and entertainment law. Much to my surprise via a Google search there were several local trademark attorneys in my small-ish community – much more than I expected. Ask them if they have worked with YouTube or YouTubers in the past and make sure they are comfortable with the ever changing laws that are specific to online content creators. You are already going to spend about $300 on the trademark application anyway, you may as well spend a little more to make sure it gets done correctly. It’s worth it for peace of mind and it can free up more time to do what you love doing… making videos and goofing off. There typically will be some push and pull between a Trademark Examiner and the Trademark Applicant (you) so you want an experienced attorney on your side who can navigate through that dance. Federal trademark registrations typically take anywhere from 8 months or more to get processed and it’s usually at least 3 months before you even get an initial response. So a lot of this is hurry up and wait. It is better to get this process started BEFORE some goober comes along and steals your show name.
SECURITY WARNING: Anything you submit to the USPTO or any other trademark entity is most likely searchable in online public record. You should redact any personal information and use a P.O. Box or registered “street mailbox” with some company such as The UPS Store for your business address, trademark owner address and any other submissions you make in your application. Basically you don’t want your full home street address searchable in public record.
STATE LEVEL TRADEMARK REGISTRATION INFORMATION – You can also register your trademark at a state level and it doesn’t take nearly as long. Yeah, I had no idea that was a thing either.
TRADEMARK / COPYRIGHT TAKEDOWN COMPLAINT FORMS – Use these if you see someone infringing upon your mark or stealing your work on a specific platform.
YOUTUBE TRADEMARK COMPLAINT FORM
YOUTUBE COPYRIGHT COMPLAINT FORM
EMAIL YOUTUBE LEGAL DIRECTLY
TWITTER TRADEMARK COMPLAINT FORM
TWITTER COPYRIGHT COMPLAINT FORM
TWITCH TRADEMARK COMPLAINT
TWITCH COPYRIGHT COMPLAINT
FACEBOOK COPYRIGHT AND TRADEMARK COMPLAINT
INSTAGRAM TRADEMARK AND COPYRIGHT COMPLAINT
DISCLAIMER: None of the above should take the place of legal advice from a licensed attorney, but hopefully this will help get you started on your journey toward registering your trademark and protecting your work.