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Why a Podcast Trademark Search is a Crucial Prep Step to Launching

woman who might not have conducted a podcast trademark search before launching
Rather watch than read? I got you.

By the end of this post, you will know why I think a podcast trademark search is a crucial prep step before launching. Hint: it comes down to saving you money and stress down the line. So here we go!


What a trademark search uncovers


So how can a trademark search ultimately save you money and stress before launching your podcast? First, it’ll tell you if somebody else is already using that name in connection with a podcast. You could argue that by using it in connection with a podcast (regardless of subject matter), there’s potential for confusion. And if you’ve ever searched for a podcast on Apple podcasts or Stitcher , you know it can get confusing if you’re looking for a podcast based on a name!

So again, a search will tell you if someone else already using the same or similar name. This ultimately saves you money and stress. How? If there is someone else using a similar name in connection with the podcast, you could save yourself from the experience of being on the receiving end of a cease-and-desist letter. And this rolls into reason number two…

Eliminate the surprise, and stressful scramble, from a cease-and-desist letter (to the extent possible)

It can be very stressful to be on the receiving end of a cease and desist letter. And if you have a trademark search done on the front end, that can save you the stress of finding yourself on the defensive and having to scramble when you receive a cease-and-desist letter. Of course it’s impossible to guarantee results 100%, but a search should uncover the obstacles that are out there. It’s worth spending a little money on the front end to save you from spending a lot of money on 1) an attorney to handle the cease and desist and related settlement, 2) a potential rebrand, and so on.

A podcast trademark search can help identify whether your chosen name is protectable

Let’s say there is someone else using a name similar to yours and connect with a podcast. In fact, let’s say there are TEN others using a name similar to yours. By using that name, it could be hard for you to police or protect your name from use by others when there are already ten others. So a trademark search can tell you the extent to which the name is used by anyone else. This can uncover whether you will have a hard time protecting your chosen name from use by others.

And yes, a trademark search can tell you whether there are any roadblocks to trademark registration. But ultimately, you can save yourself some stress and money in the form of having to scramble, rebrand, and maybe being on the receiving end of a cease and desist letter. Also, from a value standpoint, it can help to be sure you’re choosing a name that is protectable.

I hope this helps you understand why I think a trademark search is a crucial step before launching a podcast.


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woman contemplating a podcast trademark search

IP Protection for Podcasts

woman researching ip protection for podcasts

By the end of this post you will understand a little bit more about IP protection for podcasts. I’ll go into some of the different elements of your podcast and whether they are protectable under copyright versus trademark. Here we go!

Your Podcast Name.

Easy one, right?

That is protectable under trademark law. The name of your show is a brand name. As such, it acts as a “signifier” or “identifier.” In other words, it identifies the source of your podcast.

So, podcast name = trademark.

Show Notes.

The show notes can consist of literally what you plug into Stitcher or iTunes as the description of your episode (in which case, text = copyright). Or, you can take a transcript of your entire episode and create show notes based on that transcript and post it to your blog. Again: transcript = text = copyright.

Your logo.

Your logo might appear on your website, it probably appears on Stitcher or iTunes. A logo, again, is a source-identifier and your listeners identify your podcast based on seeing that logo. So, logo = trademark.

Soundbites.

Next is a sound bite that you might share on social. You could share a clip on instagram or on YouTube. And sound, in this context, is an audio recording.

A recording is protectable under copyright law.

Hashtags.

Hashtags are a little bit trickier! Whether you are sharing an episode or a snippet of an episode online, on a blog post, or on social media, you’re likely using a few hashtags to generate attention and to get that post seen.

Well, hashtags like #detroitpodcaster #nashvillepodcaster #kansascitypodcaster are not necessarily branding but are descriptive in order to get users to find you more easily.

So hashtags can be trademarks. You can use your own trademark as a hashtag to kind of label that post. But more likely hashtags are not protectable under copyright or trademark and they’re just descriptors.

Again, though, it’s important to understand that if you’re using an actual trademark as a hashtag, obviously, that is a trademark. (And you don’t want to use misleading hashtags, either, or anything that could lead to #trademarkinfringement.)

Video Content.

Another easy one!

Whether you are recording your podcast to be released on YouTube — releasing an audiovisual recording — or releasing just the audio recording with some kind of other visual element to it, whether it’s a graphic or otherwise — that video content is prime for copyright. It is creative content that is protectable under copyright law.

Your Podcast Icon.

That little square graphic. It goes along with each podcast episode and that identifies your podcast among the millions available in the several podcast apps.

It’s almost like an album cover, right? It is album artwork for the podcast world.

Even though your logo very well might appear on that graphic, that graphic itself is artwork. It is a graphic design.

And so, icon = artwork = copyright.


So I hope that quick-fire round helps you understand IP protection for podcasts. Now you have an idea as to what is protectable under trademark versus copyright.


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Learn to Create a “Legal” Podcast Ad Before Hitting Record

I think it’s safe to say that it’s a goal for every podcaster is to either use the podcast as a tool to bring in business directly, or to line up some bangin’ sponsorships and advertisements on the show. (Maybe both.)

But there are some rules for advertising on podcasts.

This post will educate you on “legally” advertising on your podcast and by the end you’ll have a good understanding of certain rules that you need to keep in mind if you want to create a “legal” podcast ad.

Online sponsorships in general

So if you’ve been following Spear IP for a while, you’ve heard me talk about sponsored posts on instagram and influencer and blogger sponsorships, right Essentially, the FTC says that you must be fair and clear and transparent when there is a sponsored relationship with a brand that you are promoting.

So how does this apply to podcasts? Well, if your audience has to ask “Was that an advertisement just now?”

You’re not doing it right.

Just as with the instagram and influencer space, in the podcast space it must be clear to your audience when there is a sponsorship relationship with a brand.

Remember, too, that you don’t have to receive actual money in order for there to be a sponsored relationship with a brand, right? If they send you free goods or if you get free services in exchange for promoting a brand on the podcast, that’s a sponsored relationship.

A quick example of a “legal” podcast ad

create a "legal" podcast ad before hitting record

So how do you create a “legal” podcast ad?
Well, one of my favorite examples is on the podcast The Sporkful.
They have this great couple of variations of a sound reel that goes something like “Mmm, time for some advertisements! Yummy!”  (Hear it for yourself.) So obviously, the content that follows is an advertisement.

You don’t have to go that far, but something like a sound effect, to kind of break up the actual podcast content from the advertising content, that could work, of course saying that there’s a sponsored relationship or saying that it’s an advertisement, or that the podcast is powered by or sponsored by a company, that’s pretty clear.

An easy-to-understand breakdown of the rules for creating a “legal” podcast ad

Keep in mind that a clear disclaimer or a clear disclosure is not ambiguous.

And you can stay on brand when you make that disclosure! It doesn’t have to be dry or technical or super legal-sounding. if you have a personal experience with a brand, or a product, or a service, you can tell that story, it’s just that it should still be clear that there is a sponsorship at play. Your listeners shouldn’t question whetheryou’ve received something in exchange for giving that testimonial about the brand.

So there you go. You need your clear disclosures, and now you have a few ways that you can set off that ad content from the actual body of the podcast episode.

I hope that those things help you understand certain rules when the time comes to create a “legal” podcast ad.

And hey, if you’re interviewing guests for your podcast, check out Spear IP’s Podcast Guest Contract Kit™.

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