As a podcaster, you’re going to spend countless hours building your brand. From researching new topics and interviewing guests to recording and editing your shows, you’re creating a voice that is uniquely yours. As a part of developing your podcast, you’ll come up with a show title and craft a logo and artwork that helps listeners identify your brand. This is sometimes called your brand collateral. Trademarking these elements helps you protect your work and maintain control over your content. Your podcast title is the most important, but you may also consider trademarking your logo, artwork and tagline, if you use one.
Why do you need a trademark for your podcast?
If you’re just starting your podcast, you may believe that trademarking your brand collateral isn’t necessary at this stage. You may be thinking that it’s best to wait until you’ve generated a stronger following before you spend the money. However, if you’re serious about your podcast, it’s best to file your trademark application before you experience any issues. Protect your intellectual property as early as possible, and save yourself from a lot of headaches on down the line.
Check to see if it’s available before you fall in love with it.
Before you’ve even launched, make sure to check to see if your name and logo are available to use. Remember that people who have been using the name before you, even if they haven’t filed a trademark for it yet, could still have superior rights to yours, especially if potential listeners or customers might be confused between your show/business and someone else’s. If you find something on point—or even really close—this could mean they have common law rights that may prohibit you from using the name, even if a formal trademark has not been filed. Do some Google searching to see if someone else is already using the name for podcasting or other media—or is associated with a well known company or brand. If not and you think it might be available, then, perform a trademark search to make sure that you would not be infringing on someone else’s trademark by choosing that name, logo, design, tagline, etc. You’ll want to find something that is clear in both places.
Pick something unique, so you’ll have better protection going forward.
When you choose your podcast name and logo, be sure to pick something that is unique. Generally, the law treats words or phrases that sound similar to the same trademark as infringing of that trademark. This means that you cannot have the same podcast name as someone else but spell it slightly differently, thinking that your brand will be protected. If you do this, you’re likely to find it hard to trademark your name, you are at risk of potential trademark claims by others, and could be accused of being a bad actor by cybersquatting or typosquatting.
Also note that it’s more difficult to get a trademark on ordinary words and phrases. Made up works are the easiest words to trademark. Some of the most well-known businesses have names that were completely meaningless before they started the brand.
When should you file for my trademark on my podcast name or logo?
You should file your trademark when you’re ready to use your podcast name or logo publicly—technically, once you “start to use your branding in commerce.” You can file just before that with an “intent to use” filing.
Do you have to file for a trademark to get protection for my podcast name?
Contrary to popular belief, you don’t have to register your trademark with the United States Patent and Trademark Office (USPTO) to have a trademark. As soon as you publish a podcast using your show name and logo, technically you have created your trademark. You don’t have to trademark it for legal protection against unauthorized use. If the mark is original, it becomes intellectual property as soon as it is made. If you want to indicate that it is trademarked (but not a registered trademark), simply use the unregistered trademark symbol—the letters TM. This indicates you haven’t registered the mark but are giving public notice of your trademark rights.
However, the best practice is actually registering your trademark with the USPTO. This puts everyone on notice regarding your trademark ownership and gives you a presumption that it is yours and can’t be copied. It also makes it easier to defend your podcast trademark in a court of law, should questions of infringement occur, or to get other people to not copy your name in the future (like by requesting a takedown of an infringing use of your mark through the Digital Millennium Copyright Act). Once your trademark is registered, you can use the ® symbol—the registered trademark symbol—to indicate that it is registered, but it is not required that you do so in order to have the full protection of it having been registered.
Can I file a trademark for my podcast myself or should I use a lawyer or one of those services that file for me?
The safest way is to have a lawyer file your trademark for you. As many as half of trademark applications are filed incorrectly. If cost is an issue and you’re willing to take a bit of time to figure it out and make sure you do it correctly, you can register your trademark yourself by following the guide on the USPTO website. Again, applications filed by lawyers are much more likely to be successful. There’s probably little advantage to using one of the “file for me” services, which usually are little more than automated filing services that upcharge you on the filing fees.
How much does it cost to file a trademark?
The cost of registering a trademark will vary depending on which filing basis you select, and what application form is used in your initial filing. The initial application fee ranges from $225 to $400 per class of goods/services. Before completing your application, make sure that you will meet all of the application requirements. If you fail to meet certain requirements, you will be required to pay an additional fee.
You should also note that your trademark won’t necessarily last forever. If you don’t use your trademark in commerce for a period of three years, you are considered to have abandoned your trademark. This leaves your trademark up for grabs, which could give someone else the right to use it.
What is the “trademark class” for goods and services for my podcast’s name?
Podcasts generally fall into either class 9 goods (downloadable MP3 files) or class 41 services (entertainment services, specifically podcast content). You may want to file in other or different classes depending on why you are podcasting (i.e. if it is for the sale of goods and/or services of a particular nature).
Should you be concerned about international trademark protection for your podcast name?
That depends largely on where you live, the reach of your podcast and the breadth of the protection you want. Registering your trademark with the USPTO ensures that you receive full protection under U.S. trademark laws. However, you should be aware that the majority of countries around the world do not recognize trademark rights unless a registration has been completed in their country. Without an international trademark registration your brand will be limited in how much it can expand. For example, someone might be able to start a podcast with your same name in another country. Radio futurologist James Cridland noted international podcasters may still want to file for U.S. trademark protection because Apple Podcasts, Google Podcasts and most other large podcast directories are U.S.-based companies and, thus, are more likely to respond to a claim of infringement of a USPTO-registered trademark. In fact, you may have broader protection, with quicker and more effective enforcement means, with a USPTO-registered mark than a mark registered in your home country.
Consider other filings outside of the U.S., including through Madrid Protocol. The Madrid system helps brand owners register trademarks in multiple jurisdictions across the globe. The treaty ensures protection for brand owners in multiple countries, using one filing application and fee.
Jeanine Percival Wright is chief operating officer and chief learning officer of Simplecast, where this article originally appeared. She is an executive and lawyer that has worked with and invested in startup and growth companies for more than 10 years.