Trademarks versus Copyrights

Sometimes it's difficult to remember that copyright and trademark, while they are both intellectual property, refer to different things. It can be fairly confusing to distinguish between the two, but making sure you have the right one is important for protecting your intellectual property.

So, let's look at the definitions given by the US Copyright Office and US Patent and Trademark Office so we can see how they are different. A copyright "protects original works of authorship including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed." The definition of trademark is that, "A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name." So, in summary, copyright covers expressions of ideas, trademark covers logos and brand names.

Now, let's take a more in depth look at the differences between trademarks versus copyrights:

Trademarks

A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. So in other words, a hamburger from McDonald's is distinguished from a hamburger from Wendy's not just by the things on the burger, but also by the wrapper and logo, and slogans. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. So a trademark is for a product, and a service mark is for a service.

Trademark rights are used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. As you saw in the above example, they were both hamburgers, but distinctly different from each other because of the packaging. You register trademarks, you register them either with the state or federally. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office, which is federal. This way your mark is not just protected locally, but also all over the world.

Basically, in order to protect a business name within your industry, you would apply for a trademark. You can use trademarks to protect the name of products or services, logos, slogans, packaging and even sounds and smells. In essence, a trademark can be almost anything that is used to identify a particular product or service.

When you register a trademark you get the rights to the protection of it, and the ability to go after infringers. Registering a trademark grants the owner exclusive rights to the mark within the specified industry.

Before you can get a trademark you have to make sure that no one else is using it. You do this by conducting a trademark search. You can conduct this search yourself, or hire an attorney to do it for you, or another company that specializes on something.

To register a trademark, that's done either through your Secretary of State for a State trademark or the US Patent & Trademark Office for a Federal trademark. Federal trademarks can only be received if you sell your product over state lines.

Copyrights

Copyrights can be obtained for things of an artistic nature. This includes, of course, poetry, films, sculptures, music, fiction, and almost anything else that can fit into those categories. You can copyright things that do not seem artistic in nature, such as software, advertising copy, games, blueprints, and other things like this.

There are five different types of copyright filings:

1. Literary works - books, manuscripts, poetry, theses, speeches, ad copy, basically almost anything written.
2. Visual art works - drawings, photographs, sculptures, artwork applied to clothing, graphics, etc.
3. Performing art works - dramatic work, script, motion pictures, etc. To be copyrighted they have to be recorded in some form, whether written, video taped, etc.
4. Sound recordings - recordings of music, drama, lectures, etc. (these can be written down)
5. Serials and periodicals - newspapers, magazines, etc.

Anything that you create is automatically copyrighted, but to protect it further, then you should register for your copyright. Since copyrights protect the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished, but by registering your copyright you are proving that you were the original author. It is possible that people can take your work and claim authorship, so you will want to register your copyright if you want to prove it is yours.

The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a day could be copyrighted, but this would only prevent others from copying the description, not others from writing their own description of the day.

Copyrights are registered by the Copyright Office of the Library of Congress.

Some additional differences between a copyright and a trademark are as follows:

1. The purpose of a copyright is to protect works of authorship as fixed in a tangible form of expression. Thus, copyright covers all tangible works of art, both two and three dimensional, photos, pictures, graphic design, drawings, and other images, songs, music, recordings of songs, sheet music, books, manuscripts, publications and other written works like plays, movies, etc.
2. The purpose of a trademark is to protect words, phrases and logos used in federally regulated commerce to identify the source of goods and/or services. So, it is not so much the word or image that is copyrighted, but how it is used. So, for example you could have an eagle in your logo, and this does not mean no one else can use an eagle in theirs, it just means they can't do it the same way.
3. It is possible to need both a trademark and a copyright. For example, let's say you create a product, a logo for it, and an ad campaign. You would want to copyright the ad campaign text, such as any brochure text, etc. You would want to trademark any slogan, logo, or packaging details for the product.
4. If you are interested in protecting a title, slogan, or other short word phrase, generally you want a trademark. Copyright law does not protect a bare phrase, slogan, or trade name. Copyrights generally require a little more text, a sentence or couple of lines are not copyrightable because people have the right to use those words.
5. Whether an image should be protected by trademark or copyright law depends on whether its use is intended to identify the source of goods or services. So, for example, if you took a photo of your child, it would be copyrighted, but if you decided to use that photo of your child as your logo for your photography company, then you would want to protect that photo with a trademark as well.
6. The registration processes of copyright and trademark are entirely different. For copyright, the filing fee is small, the time to obtain registration is relatively short. The Copyright Office just has to ensure you filled out the application right, and that you submitted suitable copies of the thing being copyrighted. For trademark, the filing fee is more substantial, the time to obtain registration is much longer. The time is longer because the Trademark Office has to do a substantive review of potentially conflicting marks which are found to be confusingly similar. So, as you can see, copyright registration is primarily an administrative process, and trademark registration is an adversarial process.
7. Copyright law provides for royalty payments.
8. The tests and definition of infringement are considerably different under copyright law and trademark law.

As you can see, there are some big differences between trademarks and copyrights, and the processes to get them are very different. However, both are in place to protect your intellectual property. If used properly, you can rest assured that your original works and your marketing tools, such as your packaging, slogans, and logos are protected.

Both copyrights and trademarks give you the ability to go after someone who uses your work. This can be on purpose, such as using something copyrighted, or it can be on accident, where someone uses a logo too similar to your own.

If you have intellectual property that you want to protect, you should considered filling an application for and registering for a copyright or a trademark.