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Law / Copyright Trademark


By Molly Eichten

Applying common sense will go a long way in launching a new business. However, there are a few areas of intellectual property law that are counterintuitive. Here are three things every new business owner should know that will help avoid costly consequences.

1) Select a business name that does not infringe another’s trademark. The Minnesota Secretary of State’s Office applies Minnesota corporate law to determine whether a particular name can be registered in Minnesota. Just because a name may be available for registration with the Minnesota Secretary of State’s Office does not mean that the name is available for use. Use of a name is still subject to trademark laws. The owner of a trademark has rights wherever it uses the mark and the owner of a U.S. trademark registration has the right to use its trademark throughout the entire U.S.

If your business name is similar to another’s trademark, you could be prevented from using the name. Even if you’ve already named your company, you should have a trademark attorney conduct a search to identify conflicting trademarks.

2) Make sure your business is listed as the “registrant” of your company’s domain name and that you control the domain name. The registrant is the legal owner of a domain name.

Computer consultants sometimes make themselves the registrant (perhaps innocently). If your business is not the registrant and you have a disagreement with your consultant, you may have to spend thousands of dollars in a legal action to have your domain name transferred to you.
You can check registrant information for your domain name at http://whois.domaintools.com. Also make sure that you have the username and password to control the domain name. Instead of giving others that information, have your consultant instruct you how to configure the domain name.

3) Have written agreements in place with freelancers and contractors that transfer copyright ownership to your company.

Whoever creates the work owns the copyright in the work – regardless of who paid for it. There are a few limited exceptions, such as an employee who creates a work in the regular scope of employment. In that case, the employer owns the copyright. But if you engage a freelancer to create a logo, promotional brochure or website, you will not own the copyright in the finished product unless you both sign a contract that defines ownership and includes certain “magic words.”

Non-ownership of copyright can be a problem in the sale of a business -- you cannot sell what you do not own. Also, if a freelancer owns the copyright to your materials, the freelancer can legally distribute them without your permission. Have proper written agreements in place with every freelancer or contractor who creates materials for your company.

Molly Eichten is an attorney at Larkin Hoffman Daly & Lindgren Ltd. and counsels clients on trademark, copyright, and Internet matters. She can be reached at (952) 896-1545, meichten@larkinhoffman.com
www.larkinhoffman.com