What’s the Difference Between Copyright and Trademark?
Is your business also a brand? Do you create original materials and assets for your business? If so, it's likely you've considered how to protect your intellectual property—and therefore, you might be wondering about the difference between copyright versus a trademark.
Ultimately, intellectual property and brand identity can be just as important as revenue when it comes to your business. As an example, you might wonder what happens if someone starts selling a product using your company name and logo as an endorsement without your permission–how will this affect your business?
Luckily, with copyrights and trademarks, you can protect your business and file suit against those who use your brand and intellectual property without permission. In this guide, we'll explain the difference between copyrights and trademarks so that you understand which might be applicable to your business and, therefore, how to properly protect your intellectual property.
What's the difference between a copyright vs. trademark?
Trademark and copyright are both forms of intellectual property, which can be defined as intangible assets, in other words, creations of the mind—such as inventions, literary and artistic works, designs, symbols, names and images used in commerce.
When it comes to intellectual property for businesses, this can largely encompass any business ideas, as well as works or processes that come from those ideas. This being said, in the U.S., trademarks and copyrights, as well as patents, are used to legally protect intellectual property.
The main difference, therefore, between copyright vs. trademark is that, although both offer intellectual property protection, they protect different types of assets and have different registration requirements.
Overall, copyright protects literary and artistic materials and works, such as books and videos, and is automatically generated upon creation of the work. A trademark, on the other hand, protects items that help define a company brand, such as a business logo or slogan, and require more extensive registration through the government for the greatest legal protections.
To better understand the difference, let's break down the details of each of these protections individually.
What does a copyright protect?
A copyright is a form of intellectual property protection that covers original works and is generated automatically by the creation of those works.
Copyright protects literary, dramatic, musical, and artistic works, including:
- Other forms of original writing
- Other forms of audio and video materials
In short, as long as the original work is preserved in some form, it is protected under copyright when it's created. On the other hand, however, works that are not available in some tangible form—such as a speech that wasn't written down or recorded, cannot be copyrighted.
Other works that cannot be copyrighted include:
- Ideas
- Discoveries
- Principles
- Listings of ingredients or contents (although a recipe or instructions can be copyrighted)
- Works that are considered "common property," such as calendars or height and weight charts.
In addition, works that are in the public domain, in other words, for which the copyright has expired, been forfeited, or waived, cannot be copyrighted again. Although the public domain varies based on country (and sometimes the type of work), in the U.S., this currently refers to works published before 1923.
This being said, in the U.S. the duration of copyright can vary. For original works created by an individual, copyright lasts for the life of the author, plus 70 years. On the other hand, works created anonymously, pseudonymously (under a false name), and for hire, copyright lasts for 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.
How to protect a copyright
As we mentioned briefly above, in addition to what copyright and trademarks protect, another difference between the two is how these intellectual properties are protected.
Again, as we've discussed, copyright is generated automatically upon creation of a work, however, there are many precautions you can take to make sure potential copyright infringers don’t use your work without permission.
Here are some examples:
- Properly marking: You can make sure your work is properly marked, such as signed or with a watermark, and that there’s a clear evolutionary footprint from the work to your business.
- Poor man's copyright: This is the practice of sending your own work to yourself, thereby establishing that the material has been in one's possession for a particular period of time. However, there is no provision in copyright law for any such type of protection, and poor man's copyright is not a substitute for registration.
- Creative Commons: Creative Commons offers free copyright licenses that allow you to mark your creative work with the freedoms you want it to carry.
- Use the copyright symbol: At a minimum, you can use the © symbol to denote a copyrighted work.
Additionally, although not required, you might decide to actually register your work with the U.S. Copyright Office. To do so, you'll have to complete the application process—which includes paying a fee and sending a copy of the work to the U.S. Copyright Office—in order to officially register for your copyright.
Completing this process will add your copyright to the public record, and you'll receive a certificate of registration. Plus, if registration is completed within five years of publication, it is also considered prima facie evidence (i.e. sufficient to prove a case) in a court of law.
Overall, official copyright registration will make it much easier to sue over the use of your materials by another party under United States’ law.
What does a trademark protect?
A trademark, on the other hand, is a form of intellectual property protection that covers words, phrases, symbols, or designs that distinguish a particular brand (or source of goods) in comparison to others.
Therefore, a trademark protects items such as:
- Brand names
- Logos
- Business names
- Slogans
In short, a trademark can apply to anything that essentially brands a business or identifies a product or company. Here are some well-known examples:
- The Tabasco bottle with the hexagonal screw top is trademarked.
- “Footlong,” all one word, is trademarked by Subway sandwiches.
- The McDonalds Golden Arch symbol is trademarked.
This being said, when it comes to trademarks, it's important to distinguish between a trademark and a service mark. Although the term "trademark" is typically used to encompass both trademarks and service marks, a service mark is specifically used to distinguish the services of one business from those provided by another.
An example of a service mark is the United Airlines slogan "Fly the Friendly Skies." Although the United Airlines name might be trademarked, the slogan which defines the service they provide, is service marked.
All of this being said, another important difference between copyright vs. trademark is that whereas copyrights expire after a set period, trademarks do not expire.
Overall, trademark rights come from actual use—in other words, using your mark in the course of doing business—and therefore, your trademark can last forever, as long as you continue to use it.
On the other hand, however, just as copyright registration helps better protect you under the law, an official trademark registration does the same. Along these lines, your trademark registration can also last forever, provided you file specific documents and pay the required fees.
How to protect a trademark
So, although registration of a trademark is not necessary, it's certainly one of the best ways to help protect your business's logo, brand name, or slogan.
First, you'll want to do a trademark search to ensure that your branding materials are not already in use. Additionally, you might decide to work with a trademark lawyer to assist in trademark registration, however, you can also complete an online application yourself through the U.S. Patent and Trademark Office (USPTO) website.
This being said, if, for example, you wanted to trademark your business name, you would check with your state trademark office to make sure the name is not currently in use, and then complete the registration process. Along these lines, it's important to note that there's a difference between state and federal trademark registration, with the latter offering the most legal protection.
Moreover, when it comes to a business name specifically, you can register a business name with your state or county clerk by filing a DBA, but this is not the same as trademarking your business name.
Ultimately, if you do register your trademark with the USPTO, you'll use the registered trademark symbol "®" to indicate that your property is legally trademarked.
On the other hand, if your trademark is not registered through the USPTO, you can use the ™ symbol to signify common-law rights in a trademark, similar to the way copyright law works. In this case,™ is used for goods, whereas ℠ is used for services.
Again, before using these symbols, you'll want to make sure what your trademarking isn’t already in use—and remember, just because something doesn’t have a symbol by it doesn’t mean it’s not legally trademarked.
As a reminder, the differences can be summarized as:
- Copyright protects original work, whereas a trademark protects items that distinguish or identify a particular business from another.
- Copyright is generated automatically upon the creation of original work, whereas a trademark is established through common use of a mark in the course of business.
- Copyright expires after a set period of time, whereas a trademark doesn't expire provided the mark continues to be used.
Overall, both of these intellectual property protections can be important if they're applicable to your business. Therefore, if you're unsure of your legal rights or the process involved with officially registering a copyright or trademark, it might be helpful to work with a business attorney or online legal service for advice and guidance.
Created & Posted By Ravi Kumar
CA Article at TAXAJ
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