Copyright Merch or Trademark Merch?

Copyright Merch or trademark Merch? Thinking about getting into Merch? Unsure what type of intellectual property to use here? The USPTO IP identifier tool can help you decide.

Many popular websites sell “Merch” to their fans. Some popular Merch items are T-shirts, hats, mugs, tote bags, and the like.

Merch is often printed with various combinations of graphic images, symbols, names, and slogans. Perhaps you also plan to sell a new gadget or device you recently designed. You probably want to protect everything you can while also avoiding legal problems. But you may not want to spend much time becoming an intellectual property expert. Is there an online website where you can get a quick initial IP assessment?

The USPTO Intellectual Property (IP) Identifier

The USPTO provides an online IP identifier tool that asks you simple questions and automatically suggests the type of intellectual property.

Let’s do a simple example. Say you have a website devoted to elephants and have designed (or commissioned) a cool elephant graphic.

You want to put your elephant graphic on some Merch hats, mugs, and t-shirts. But you don’t have a clue as to what sort of IP works here. Go to the IP identifier tool and answer the first question:

The tool will ask other questions you should try to answer as best you can. Eventually, it gets to something that might be relevant for your situation:

Even if you did not do the graphic yourself, so long as you now own the rights to the picture and think that people will get your Merch because of that cute elephant, check “yes.”

A few questions later, the system will suggest:

Copyright merch

Click to find out more about copyright and design patent Merch options. If your Merch also includes your custom-designed elephant-shaped backscratcher, the design patent suggestion is very relevant!

However, suppose that you run the “Text-an-elephant taxi company.” Your customers can use text messaging to summon your elephants over the internet. You use the elephant as your company logo and want this Merch to help promote your business. You also want your merch purchasers to know that the Merch comes only from your company.

So you promote your company by putting “Text-an-Elephant Taxi Company” on your Merch in big letters. Instead of a giant elephant logo up front, you only put a miniature elephant logo on the back tag to show that the Merch came from your company, not your competitor. (Competition in the online elephant taxi business can be intense!) 

Here, you would answer yes to the IP identifier question:

The IP identifier would eventually suggest:

Trademark Merch

So the USPTO system can also direct you to look into trademarks as well.

Keep in mind that this first level USPTO IP identifier system is simplistic. Products and services often contain multiple types of IP, and often require more careful analysis. For Merch, you often have the options: copyright Merch, trademark Merch, and design patent Merch. But if you are also selling some new device of yours, consider utility patents as well.

Advanced IP Identifier

After you answer the initial questions, the USPTO also provides an advanced IP identifier to analyze your IP further. In addition to helping you explore your IP in more detail, this system also gives you essential tips on obtaining your IP rights and avoiding infringing on the IP rights of others.