Can you trademark software in the United States?

Can you trademark software in the United States?

Software is the instructions that run a computer.  Without software computers would just be a hunk of silicon and metal. Businesses invest significant time money and effort in developing software for their own use or for resale. It is in the best interest of a business that develops software to carefully guard that investment with every available tool.  Businesses must protect the software they develop from unauthorized copying or else competitors could benefit from the business’s investment.  Intellectual Property law offers four primary methods for a business to protect software that the business has developed.  Those methods are Patent Law, Copyright Law, Trademark Law and Trade Secret Law.  Using Patent Law and Copyright Law have been discussed in the two blog posts earlier this week.  In this blog post using Trademark Law to protect software will be discussed.

Does Trademark Law in the United States allow a business to prevent others from making unauthorized copies of software? No, Trademark Law does not offer good protection to prevent the unauthorized copying of software.

For businesses not in the software development industry, that develop proprietary software the business never intends to offer as a product, Trademark Law is of little use.  But for businesses that develop software and computer programs with the intention of selling those products, Trademark Law can provide some useful protection.

The purpose of a trademark is to identify the source of goods.  Trademark Law is intended to prevent the unauthorized use of trademarks in a way that would confuse consumers about who produced goods. The unauthorized use of a trademark is also known as trademark infringement.  Trademarks can protect the name of a software company, its products and taglines, and prevent competitors from using similar names.

If a business sells software with a trademark attached to the software, than the business could sue competitors that copy and sell the software with the trademark still attached.  A trademark would be considered attached to a piece of software when the trademark is placed on the packaging in which the software is sold or the trademark is visible when the software is being used.  A trademark hidden somewhere in the software where a consumer would never notice it would not be considered trademark infringement.

If a competitor creates a competing piece of software, and uses a different but confusingly similar trademark, that might also be considered trademark infringement.  For instance if you owned a popular operating system like Windows, a competitor that produces a competing operating system called Windoze would very likely be infringing on your trademark.

Trademarks protect software brands, but not the software or code itself.

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