Thursday, January 31, 2013

Wants to Use Poems in Play

Dear Rich: I have two questions the answers to which I need as soon as possible. I want to use a few unpublished poems written to me by a former acquaintance who happens also to be a published poet and who in the past read his poetry on a professional performance circuit in Europe. The play is a 10-minute one-act to be used as one of 10 others in a single admission-payment-required performance at a local community theater of 250 seats and written/acted by amateur playwrights and actors. The poet is a citizen of another country, he and I have no mutual acquaintances locally, we have no communications between us, and the odds that he could be made aware of the use are infinitesimally small. My ex-husband is a legal scholar in the field of intellectual property, however, so I'm respectful of such rights for the most part.  What, if any, permissions need I obtain from the poet? Also, I would like to use some brief portions of recordings by Leonard Cohen as part of the one-act, same circumstances. What permissions need I obtain? We know you are in a hurry for an answer and wish that you felt comfortable asking your ex-husband this question, but in any case, we feel fairly certain that legal scholars would agree that both your uses are infringements, both might be excused as fair uses, and that obtaining permission would eliminate any potential liability. On the other hand, if the chances of the copyright owner learning about your use are, as you say, "infinitesimally small," there's little reason to seek permission, now. If the play receives wider attention, you can always seek it later.
If you're a "dot-your-i's" kind of person ... The permissions required are fairly straightforward and include permission to "perform" and "reproduce" the poems and songs. In the case of Leonard Cohen, you'd need permission from the owner of the song (probably a music publisher) but you wouldn't need permission from the owner of the sound recording copyright (the record company). We have permission forms you can adopt for these uses in our permissions book.

Wednesday, January 30, 2013

Does Architect Own Copyright in Building Photos?

Dear Rich: I have an architectural practice and have posted the photographs of a number of completed projects on a web site called Houzz. Now, a past client has seen my photos of her project and is demanding that I remove them. There was no clause in our contract either way, although I'm certain that case law has established that the rights to the architectural design and drawings remains with me, the professional who created them. But what about images of the completed project? Thanks for the link to, where we spent several hours deciding whether we liked our home office (photo) better than the posted ones (we did).
Right, you had a question. Image copyrights are owned by the person who created the image - the photographer. If the image contains separately copyrightable material--for example, there's artwork within the image, or the architectural design is copyrightable --  then permission is required from the photographer and the artist or architect whose work appears in the photo. There are many exceptions to these rules, for example, if the exterior is publicly viewable or the reproduction qualifies as a fair use. We wrote about many of these issues in this post on architectural photos. The only other issues that might arise would be contractual (did you agree not to post images?) or privacy (did you invade the client's privacy in some way by posting the images?). Assuming these are standard interior shots without client identification (as commonly seen on Houzz), we doubt that the latter issue will arise.

Tuesday, January 29, 2013

Is Gallery Liable for Artist Infringement?

Dear Rich: I am on the jury committee of a small art gallery in Michigan. We have had an artist submit several items of clothing for jury. The artist is using name brand (in this case, JCPenny's Sag Harbor) blazers with the labels still in them which she then gussies up the plain blazer with sequins, cuff frills, attached scarves, or similar and wants to sell them in the gallery. We are balking at the moment concerning the labeling of a name brand, whether this use violates any copyright or trademark laws. A second, similar question, is if the gallery does display a "work of art" that an artist has plagerized or infringed on copyright without our knowledge, can the gallery responsible in a suit if the artist gets called on it? As to your first question --  whether it's an infringement to modify and sell name brand clothing -- the answer is "probably not." There's definitely no copyright infringement as clothing designs are not protected under copyright law and resale is permitted under the first sale doctrine. As for trademark infringement, that would only be an issue if consumers believe that JC Penney was the source of the modified jackets -- a situation that can be avoided by placing a prominent disclaimer or statement near the clothing, "JC Penney Sag Harbor jackets modified by artist [Name]."
Can a gallery be liable? Yes, galleries, museums, flea markets, swap meets or any other venue where infringing goods are sold can be liable for what is known as either vicarious, contributory or indirect infringement. Although each of these has different standards, the major principle in cases like this and this is that if the venue had knowledge of the infringement and benefited, the owner of venue can be brought to trial.

Monday, January 28, 2013

Musician Seeks Work for Hire Help

Dear Rich:I have successfully registered copyrights for my songs and filed the same songs with ASCAP. All intellectual property rights are mine free and clear as this has been a solo musical effort thus far (music, lyrics, performance). Now I'm ready to record some songs, however, since I have no band, I'll be hiring session musicians. My intent is for such musicians to be compensated for their performance and any incidental composition as a work for hire arrangement. For example, if a guitarist comes up with a delightful lead part that I did not compose but that I want to use, I don't want to have an ongoing obligation to administer his fair share of copyright for his contribution. I have acquired a work for hire agreement that stipulates the activity is a work for hire, and that the musician is assigning any and all copyrights to me. Is this adequate to achieve my goal? If you want to see the agreement, it is attached. We're torn about looking at your work-for-hire (WFH) agreement because we're not sure such personalized review amounts to the unauthorized practice of law or whether it is part of the law's information revolution. Oh well, we guess it doesn't really matter because the bottom line is that an agreement like you describe -- a work-for-hire agreement that alternately assigns copyright (we previously wrote about such arrangements) -- should achieve your goals.

Friday, January 25, 2013

Can I Write a Song Called American Graffiti

Dear Rich: If I choose to compose a song with the title "American Graffiti", and include the phrase "American Graffiti" several times in the lyrics, is this considered a derivative work for which permission would need to be granted from the copyright owner? The song would not be about the movie - it's just a cool phrase. I read your article on copyright for short phrases but am still not sure. You should be fine with a song titled (and including the phrase), "American Graffiti." The two-word combo is not protected under copyright law and (based on this case and others) it's unlikely that Universal, the owner of rights would proceed with trademark claims against a songwriter. (Currently Universal holds only one trademark registration for American Graffiti -- Reg. No. 2336375 -- for die cast miniature vehicles.) Also (and we're not sure if this qualifies as an FYI or a BTW), but according to the Harry Fox song database, there already is a composition entitled American Graffiti by Scott Wiseman. Many songs (for example this and this) can have the same titles ... so that should not be an issue.

Thursday, January 24, 2013

Developed Auto Ideas: Now What?

Dear Rich: In 2004, I drew up two sketches with written descriptions for two different automobile ideas, one of which I designed as an enhanced safety feature, and one of which I designed as an enhanced security feature. I sealed the works in an envelope, mailed them to myself, and had the envelope notarized. I have a renewed interest in learning how to go about further protecting and getting the designs in front of the appropriate department of an automotive company. There are two ways to protect your undisclosed automobile ideas: (1) as trade secrets (in which case you'll need to use NDAs when disclosing); or (2) by obtaining patents.
Design patent or utility patent? Although you're using the word "design" to describe your innovations, they don't sound like design patent material (which is reserved for the appearance of functional objects). If your innovations enhance safety or security, then they are functional and may be the subject of a utility patent. Read up on utility patents to decide whether your ideas will qualify. Keep in mind that the date of your invention -- 2004 -- is less relevant now that the new patent law will go into effect in March. And if you've made any public disclosures of your idea, that will likely kill any patent hopes. As for the notarized envelope, don't expect that to provide any protection. It's sometimes referred to as a "post office patent" or "poor man's patent." But whatever you call it, alas, it doesn't prove anything.

Wednesday, January 23, 2013

Wants to Publish Letters from Sci Fi Writer

Dear Rich: I possess two letters written by a famous science fiction writer who lived in a foreign country and is now deceased. One is a copy of a letter written at my request to a postal official in Washington, D.C. The other was written to me personally. I contacted the literary agency that owns the rights to the author’s estate and requested permission to reprint the letters in a book. The agent for the estate in the U.S. responded that “Frankly, I am not comfortable granting permission to someone I don't know, who is not associated with a major publishing house or any other person or entity with a reputation that is known to me. Normally we just don't deal with individual persons unless they are referred or recommended by someone we know.” In fact, I had been referred to him by the literary agency that owns the author’s estate in Great Britain. Do I have the right to reproduce in my book a copy of the envelope that these letters arrived in? There is no copyright in a typical envelope (addresses and a cancelled stamp). The only possible claim that could arise would be -- and this seems like a longshot -- that if, by disclosing someone's address, you were invading their privacy. As for the letters, they are considered literary works and the writer retains copyright unless the letters were published before 1923, or published before 1964 but not renewed (in which case they are in the public domain). Sending a letter to someone else transfers ownership of the physical letter, not the copyright. The science fiction writer's estate (or whoever acquired the writer's copyrights) can prevent duplication or further publication. You may be permitted to reproduce portions of the letters under fair use principles ... here are summaries of some cases.

Tuesday, January 22, 2013

Is Darwin's Book in the Public Domain?

Dear Rich: Is Origin of Species copyrighted? I would like to use a short extract in a piece of artwork which will be for sale. Do I need permission and where from? No permission required. The text and illustrations from Charles Darwin's On the Origin of Species were first published in the U.S. in 1860 (and don't you wish you had one of those first editions!) The publication date places the work safely in the public domain and is free for anyone to use.

Friday, January 18, 2013

Can I Photo Miami Landmarks?

Dear Rich: I am a professional photographer that recently moved away from fashion and commercial photography to artistic photography. Currently I have a show in Florida composed of highly manipulated images of several structures among them the notable Miami’s 1111 Lincoln Road parking lot. The property managers have recently sent me letters claiming I have infringed on their copyright, trademark and patent rights. What do you think? We don't understand why property owners are hassling you. But then again, we don't understand a lot of things -- for example, why people are stealing Tide to buy crack, why so many people were taking their clothes off on the most recent episode of Girls, or why things ended so badly for Paul Masson wines and Orson Welles.
Right, you had a question. We've said it before in other blog entries, but we're happy to repeat it here: Anyone is free to photograph publicly viewable buildings in the U.S., (even those constructed after architectural copyrights were legitimized). Under copyright law, building owners cannot prevent you from taking photos from a public spot and they can't hassle you over manipulations or other "pictorial representations." As for hassling you over patents, that's a non-starter. The design and appearance of a building can't be protected by a utility patent. Arguably, it may be protected by a design patent but that could only be infringed if someone created a similar building. As for trademark protection, it's possible that uniquely shaped structures such as the 1111 Lincoln Road parking lot may claim trademark rights (we found a registration for the mark, "1111," Serial No. 77816143) but even if the parking lot achieved trademark/trade dress status, the owners can't stop artistic or editorial uses such as a photo exhibition, or a book from an exhibition (or even for use on postcards).

Thursday, January 17, 2013

Who Owns Jewelry Photos?

Dear Rich: Help. Who owns the photos that a photographer took of my jewelry. She claims she owns the rights and can reproduce the pictures at her website? How can that be? We've discussed this issue before at our crafts site.

Wednesday, January 16, 2013

Can Band Leader Sign Contract for Band?

Dear Rich: Our band is built around a charismatic lead performer, kind of like Bruce Springsteen and the E Street Band. The band got asked to sign an agreement with an indy label. Except when it came time to sign, only the leader of the band signed, not the rest of us. Does that mean that only he is bound by the agreement? Does this mean that only the leader gets money from sales of recordings? The band members are probably not bound by the agreement (and therefore not entitled to income from it). Most labels that want to bind musicians make them sign the paperwork. However, the answer really depends on (1) how your band is structured -- that is, what type of entity you are (2) in what capacity the leader signed the agreement, and (3) what the agreement stated -- specifically are the band members named as "parties" to the agreement.
Leader as sole proprietor. If the leader hires the band members and pays them as contractors --- for example, contracting for performances -- then he is a sole proprietor and the band members are considered independent contractors. In that case, you would not be bound by the agreement unless you signed it, as well.
Partnership? If the band is a general partnership (the parties share in the liabilities and profits), band members may be bound by the signature. (You do not have to have a formal partnership agreement to be a partnership.) Typically, you're a partnership if you all contribute to the business (equipment, time and money) and share income (performance, royalties, etc.) In that case, any general partner can bind the band. So, if the leader signed the agreement on behalf of the band then the band could be bound. (Here's an article about contract signatures.) If you have a copy of the agreement, check to see whether the partnership is named as a party to the agreement, in which case all of the partners are bound "individually and collectively".
Corporation or LLC. If the band has incorporated or formed an LLC, the leader could also bind the band if corporate or LLC documents authorized the leader to sign on the band's behalf.

Tuesday, January 15, 2013

Can I Theatricalize Hoarders?

Dear Rich: I want to create a theatre piece inspired by the real life characters featured in the Channel Four documentary ‘Obsessive Compulsive Hoarder’. Do I need the permission of the real people involved? We understand your fascination with hoarders. We had a good friend who was a hoarder. He used to always wear black t-shirts and one day we stumbled on some boxes in a back room each with the year marked on it. He had saved every black t-shirt he'd worn for the past 25 years, all neatly folded and in boxes. Wow!
Right, you had a question. Generally, novelists and dramatists can get away with fictionalizing real life people and events without permission, and those who object usually have a hard time winning claims. (This article explains some of the rules and exceptions, and we explored similar issues in this blogpost.) In your case, we think extra-care is required because you are basing the play on a copyrighted work in turn, based on real people. The more likely that a viewer of your play finds similarities between the stories or characters from the show -- similar names, dialogue, appearance, etc. -- the more likely the show's producers (or the persons appearing in the show) may object.  We're not saying you can't succeed on a First Amendment basis, but you will be best served to make the characters distinctly distinguishable from the folks on TV. Of course, this is dependent as well on the producer or show participants learning of your play.

Friday, January 11, 2013

Can We Use Yearbook Photos in Our Music Video?

Dear Rich: Our band has written and recorded a song that is about looking back at times past when it was "just you and me and some good old rock & roll." We are creating a lyrics video and have decided to use candid photos scanned out of high school yearbooks from the late 70s and early 80s. The photos will be altered with various effects to enhance the old, nostalgic look. Nonetheless, specific photos and faces will be recognizable. Obviously, the purpose of the video will be to promote the song and the band and, hopefully, drive sales. What kind of copyright problems are we facing? Who owns the rights to the photos? Do we have a fair use defense? The rights to the photos are most likely owned by the yearbook photographers. (We've addressed yearbook photo issues a few times before and this post discusses ownership.) The subject of the photo -- the high school student -- can only hassle you if you defame them or  invade their privacy or use the image in an ad or an endorsement (and we think a brief appearance in a music video is unlikely to trigger the right of publicity).
Fair use? We're not sure about your fair use defense; it all depends on whether your use of the photo could be considered transformative. Maybe ... but it really doesn't matter because as readers of this blog are aware, even when the experts claim it's a fair use, that often has little practical effect.
Bottom line dept. Are yearbook photographers from 30 and 40 years ago likely to see your video, recognize their photos, and complain? We think the chances are slim.

Wednesday, January 9, 2013

Is It Too Late to Collect Judgment From Magazine?

Dear Rich: I won a small claims judgement for unpaid writing services a few years ago. Backstory: I signed a contract as a freelancer to write four articles for a national music magazine and to be paid a sum of money. All contracts were signed by the national magazine and myself before I started the work and at the time of being published. I won by default when the magazine did not show up for small claims court. Now I have a judgment I am unable to enforce because I have no info regarding the company's assets (where they bank their money, etc). Since it is a company and not an individual I am suing, how can I track down their assets in order to put a lien on them so I can receive what they owe me? PS: I am owed $800. Is it worth pursuing or will this cost me more in the long run to track them down? They claimed bankruptcy the same year they did not pay me but are still publishing and selling copies of their magazine on newsstands and worldwide. Should I fight for my money or give up? If the Dear Rich Staff was in your position, we'd probably give up on the $800.
Chapter 11. One hurdle is the bankruptcy. If the judgment were incurred prior to the filing of the bankruptcy, it's going to be tricky (maybe impossible) to enforce. We're guessing that judgments and debts like yours (unsecured creditors) were scrubbed when the company emerged from Chapter 11 bankruptcy.
Even if we're wrong ... Absent the bankruptcy, it's sometimes cost-prohibitive to enforce a debt of less than a thousand dollars. The good news is that you have plenty of time -- in some states up to 20 years --  to enforce a judgment (statutes vary). You can track down a business's assets using online services. If you're handling it without an attorney, you'll need to do paperwork -- for example, maybe file an Abstract of Judgment -- depending on the state law where the judgment is enforced.

Tuesday, January 8, 2013

Can I Create Raggedy Ann or Peter Rabbit eBook?

Dear Rich: I want to make and sell an interactive ebook for iPads and tablets using Johnny Gruelle's Raggedy Ann Stories book and Raggedy Andy Stories book. The books were published in 1918 and 1920. I plan to use the original text and illustrations. The interactive part will include moving the characters in the scene, combining parts of one illustration with another, adding sounds, and adding new drawings to existing illustrations. For example, children would be able to touch Raggedy Ann to make her arm move or touch the sky to make snowflakes fall.  I also want to .... Also, what about Beatrix Potter's Tales of Peter Rabbit published in 1902? What if I made an interactive counting or alphabet ebook with new text but used the original illustrations or parts of the illustrations from the copyright expired books. However, there are trademarks on Raggedy Ann and Raggedy Andy and Peter Rabbit. Would that infringe on the trademark? We'd like to greenlight your projects, but we think the trademark owners of Raggedy Ann and Peter Rabbit take a very narrow view of what's in the public domain. If you go beyond what they consider tolerable -- for example creating derivative works -- they may try to roadblock your work. For example, Peter Rabbit's lawyers claimed in one case that a collection of public domain Peter Rabbit stories with various juxtaposed graphics violated the Peter Rabbit trademarks. Citing the overlapping powers of trademark and copyright a federal court ruled that Peter Rabbit's lawyers could go ahead with their lawsuit. 
Turf protection. There's a lot of money riding on the proposition that trademarks can protect these public domain franchises -- for example, Disney's proprietary approach to Cinderella, Pinocchio, Snow White, Little Red Riding Hood, Sleeping Beauty, and the Little Mermaid. Peter Rabbit's lawyers are internationally active and we assume the Hasbro and Simon & Schuster legal teams for Raggedy Ann (and BFF Andy) are also vigilant.
Bottom Line Dept. We don't want to discourage your use of public domain materials and we like your book ideas. We also think that there's some case law that supports your position -- for example, the Supreme Court prohibited the use of trademarks to create a "mutant" copyright regime and the high court also liberated titles of public domain works. There's simply no bright line test to determine when (or whether) fictional characters from public domain books can be used to limit public domain reproductions.  For that reason, proceed with care. As a general rule the further you stray from the original public domain publication, the more likely you are to trigger a cease and desist letter. And if you plan to proceed with your projects, include prominent disclaimers stating that the works are not associated with the various trademark owners.

Monday, January 7, 2013

Using YouTube in Book

Dear Rich: (1) Can I use the name "YouTube" in my ebook? (2) Can I reference YouTube links in my ebook? (3) Also, could the word YouTube be used in the title? (1) Yes, (2) yes, and (3) yes (as long as you don't imply YouTube is associated with or endorsing your book).

Friday, January 4, 2013

Are We Entitled to Royalties from Outdoorsy Grandpa?

P.S. We miss John Candy! R.I.P.
Dear Rich: My grandfather was a legendary outdoorsman and outdoor writer. He died in the late 1970's with a will dividing his assets per stirpes. His books have continued to be published. His name and likeness have also been used to market various products, including commemorative guns, a non-profit museum, videos, and editions of magazines. Following his death, my mother received royalties from various publications. Since my mother's death six years ago, neither my brother nor I (we are the sole heirs) have received any royalty checks from the publishing companies, and so far as I know, no company or organization has ever offered any family member permission to use his likeness We are aware that my aunts and uncles have continued to receive checks from various publications. However, we are not close and do not know which publishers have been paying, or how much. We do not know if any companies are using his name and likeness Are my brother and I entitled to my mother's share of the royalties? Do any of my grandfather's heirs have any right to determine when his name and likeness may be used? Are we entitled to profits generated from such use? Your first step is to check your mother's will, and if there is no will, review your state inheritance law. If your mother inherited a share of your grandfather's royalties, you and your brother would be entitled to her share ... provided your mother's will passed those assets to both of you. If your mother had no written will, then most likely under laws of intestate succession, it would go to her children (assuming there is no spouse). (This intestate succession article provides more info on the process.)
If you inherited ... Your next step is research and documentation. If you and your brother inherited your mother's share, you will have some paperwork ahead of you. First, you need to determine the sources of the royalties. Then, you must contact the sources and provide them with appropriate documentation proving that you are entitled to the payments. This may require providing a death certificate as well as estate or probate documents (state laws differ) demonstrating you are the heirs. Most likely you will have to contact your mother's siblings.
As for the name and likeness ... Making money off your grandfather's name and likeness (from endorsements, etc.) depends on the contracts he signed while alive, the contracts signed after his death and state "right of publicity" laws -- some states provide for post-death rights, others do not. Again more research is needed. Possibly, somebody is coordinating these endorsements, and that most likely is one of your aunts or uncles, or someone appointed by them to manage these endorsements. Research is needed!

Thursday, January 3, 2013

Customizing Barbie Dolls

Dear Rich: If a custom doll is created using another one as a base, is it an infringement on the copyright to mention the doll used as a canvas even if you specify that it has been modified. For example, if I were to buy a Barbie, MonsterHigh or Blythe doll and then paint and sculpt her face to look the way I want and then decided to sell this doll on Etsy or exhibit her in an art gallery as a custom X Brand Name could I do that? In essence, I'd only be mentioning that she was an X to give people a general idea of her size and type since the doll would no longer look like the dolls you can buy, but are you allowed to say this? I know that people who customize cars and motorcycles don't seem to get into trouble for mentioning the brand of the vehicle they used, is this different? And if it is, why is it so? Also, even if you're allowed to mention the canvas doll's brand do you have to refrain from selling your custom doll in the box she came from since that item does have the maker's logo? It's possible that you're infringing copyright, (though it probably won't matter). Unlike classic automobiles, Barbie is protected under copyright laws and modifying the doll creates a derivative work, something that its owners, Mattel, may consider an infringement. In practical terms, it seems pretty unlikely Mattel will pursue you simply for modifying the doll (and you may have a reasonable fair use argument). There are many "altered" Barbies and Mattel seems to have a "live and let live" approach to these plastic ladies (our altered entry is shown, above). In any case, the company hasn't had good luck pursuing arty derivative makers and seems to have accepted the fact that folks like to parody their cash "cow" (nay offense, B!).
What about trademarks? The company is more likely to object to the sale of the modified doll within the original packaging. That raises a trademark issue --  consumers are more likely to be confused -- and it implies that Mattel is the source of the derivative. When selling it on Etsy, you can mention that it is a modified Barbie doll but if you're really concerned about liability, include a disclaimer that  the modified dolls are not endorsed by or associated with Mattel. That will make it more challenging for the company to claim consumers could be confused.

Wednesday, January 2, 2013

Do Unregistered Trademarks Have Rights?

Dear Rich: I am planning on starting my first company, shortly. Currently, I am doing a trademark search, and ran into a Nolo article which states that "searching for unregistered trademarks is important because, even if a trademark is unregistered, its existence could prevent you from registering the trademark in your own name or from even using the trademark legally." How does a trademark have legal rights, if it is not registered with the USPTO? Also, if my trademark becomes registered, yet the prior user has his/her trademark still unregistered, would there be any way they could win the case, as my TM has rights, and their trademark does not? Yes, owners of unregistered (or "common-law") trademarks have legal rights within the geographic areas in which they operate. An unregistered mark can sometimes stop a subsequent federal user in the same geographic area. Or alternatively, a bigger company moving into an area may not be able to prevent a smaller competitor (whose use preceded the big company) from using a similar name. (Hence, Norman McDonald was able to continue to use his name on his hamburger stand in Philpot Kentucky though he had to remove his copycat arches.)
What gives them the right? Laws about unregistered marks are derived from a way-old English business principle: if someone attracts customers (goodwill) it is unfair for someone else to falsely pass off products or services with a similar trademark, thereby confusing consumers. Sometimes these state or federal laws are referred to as unfair competition laws, or unfair business practices. Famous unregistered trademarks can be protected under federal dilution laws. (Note, some functioning regional trademarks may not qualify for registration because they are not used in commerce regulated by the federal government -- typically, interstate commerce.)
The registration process. Some people believe that registration is the process of turning a name into a trademark. Actually, it's the opposite. You can't get a registration unless the name already is a trademark. Once your examiner is satisfied that you have a trademark, registration is granted and that enhances your already-existing trademark rights. Registration gives the owner a presumption of ownership, provides constructive notice to other companies in the U.S., and offers the hope of incontestability (after a few years). Registration may also increase your payment in case of a willful infringement.
The unregistered trademark. As noted, an unregistered first user of a trademark can often claim trademark rights within the geographic selling area. But keep in mind that having an unregistered name is not the same as having an unregistered trademark. You can't claim trademark rights, unless the moniker meets the legal requirements of a trademark --  that is it's distinctive and associated with your goods and services.
The way it is. All that said, nowadays, the tendency is to register as much as possible. That's partially attributable to the Internet: registration helps in domain name battles and the Internet has made made many regional (previously local unregistered) trademarks into national businesses. In addition, registration is now de rigueur for startups whose equity investors perceive it as adding value.