Trademark and copyright are both forms of intellectual property, which is defined as a creation of the mind, such as inventions, literary and artistic works, designs, symbols, names and images used in commerce. Along with trademarks and copyrights, intellectual property can also be legally protected by patents. While trademarks and copyrights both relate to intellectual property, each protects a different type of asset. In general, a copyright is geared toward literary and artistic materials and works, such as books and videos, and is automatically generated upon creation. A trademark protects items that help define a company brand, such as its logo or slogan, and require more extensive registration through the government. Read on for specifics.
A copyright is a collection of rights automatically vested to you once you have created an original work. A copyright is what businesses usually think of first when they have created an item of intellectual property and they want to make sure no one else uses it. Copyrights are used to protect an original creation which is put in tangible form and that is communicated somehow. Works which can be copyrighted include books, articles, works of art, fabric works, sculpture, photographs, poems, plays, dances, musical compositions, television and radio broadcasts, computer software, and industrial designs. Some of the creations that cannot be copyrighted can be trademarked. This includes:
• Works that are not fixed in some tangible form. For example, a speech that isn’t recorded or written out cannot be copyrighted.
• Titles, names, short phrases, and slogans, including book titles
• Familiar symbols or designs, typographic variations or coloring
• Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devises
• Works that are common property or are in the public domain, like historical facts or measurement conversions.
Only the copyright owner is granted exclusive rights to reproduce the material, unless they sell their rights to someone else. However, there are limitations. Copyright only protects the original expression of ideas and not the actual ideas themselves.
Types Of Copyright
• Copyright in literary, dramatic, musical or artistic works.
• Copyright in other subject matter, such as sound recordings, etc. As a general rule, the first owner of copyright can decide to assign copyright or allow others to share, reuse or remix their material. If someone is copying your work, you can bring forth an action for infringement.
You should also be familiar with 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 since 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 is a great resource for those making things that need copyright protection. At a minimum, you can use the © symbol to denote a copyrighted work. However, in case someone does use your work without your permission or otherwise infringes your copyright and if it’s valuable enough you’ll want to file a form, pay a fee, and send a copy of the work to the Copyright Office to officially copyright the work. This will make it much easier to sue over the use of your materials by another party under States’ law, but it’s not always necessary. Registering also adds your copyright to the public record, and you will receive a certificate of certification. If registration is completed within five years of publication, it is also considered prima facie evidence in a court of law. Copyright law protects original works of authorship fixed in a tangible medium of expression. It does not protect ideas themselves; rather, it protects unique expressions of ideas.
After a copyright is obtained, the recipient holds the exclusive right to reproduce the original creation and craft derivative works. When you are the owner of copyrighted material, you decide how that material is used. If that happens without your permission, a copyright affords you certain legal protections, allowing you to collect damages for improper use. Copyright law protects creators as an incentive to continue to create. If the work could be used by just anyone, that incentive would be gone. The misuse of a copyrighted work is infringement.
A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Examples include brand names, slogans, and logos. (The term “trademark” is often used in a general sense to refer to both trademarks and service marks.) Similar to copyright, a person does not need not register a trademark or service mark to receive protection rights, but there are certain legal benefits to registering the mark with the USPTO. There is rarely an overlap between trademark and copyright law but it can happen. Trademarks are an effective way to promote your brand and protect your products and services. Generally, trademarks are signs that operate as a distinctive mark. They enable consumers to identify goods and services between one owner from other competitors. The term sign is broad and includes letters, words, names, signatures, devices, brands, headings, labels, tickets, packaging, shapes, colors, sounds, and/or scents. Basically, anything which covers the surface of a product, such as the shape of a container, may operate as a trademark.
Trademark Protection and Registration
The Patent and Trademark Office indicates that a trademark protects words, names, symbols, sounds or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods. This means that a company can register a trademark for its business name, slogans, logos and other items that essentially brand the product or company. Registering a trademark first requires doing a trademark search to ensure it’s not already in use. You need to do a trademark search to ensure that your branding materials are not already in use, and because of the potential for legal headaches, you might want to hire an attorney to assist in trademark registration.
For your trademark to be enforceable, you must first register it. However, you can only register your trademark if it satisfies the following:
• If the sign is capable of distinguishing the goods or services of the owner from those of other traders; and
• If it meets other requirements for registration.
Once a trademark is formally registered, you will have proprietary protection and the exclusive right to use, sell and license your trademark.. There are also numerous benefits to registering a trademark. Not only will your goods and services stand out from your competitors, but the unique features of your registered trademark will be protected throughout for the period of 10 years.
Copyrights and Trademarks as Intellectual Property “IP Law”
Copyrights and trademarks are both forms of intellectual property, which is a mental creation that has value to a business In addition to copyrights, trademarks, and service marks, intellectual property includes patents. From an accounting standpoint, because this intellectual property has value, it is considered an intangible asset (with no physical form) and IP can be bought and sold, or its use can be licensed, (sold to someone to use it). The main qualification for trade-marking something, according to the Trademark Office, is that a mark cannot be confused with another. If a name is part of a trademark, it must be unique. An attorney can do more thorough research on the databases; to be sure you are not using a trademark or copyrighting something someone else has first claim to. Fortunately, you have the right to file suit against people who use your brand and intellectual property without permission. Unlike trademarks, you do not need to register copyright because protection is given automatically. But copyright does not last forever. Under the Act, copyright in works created since January 2005 typically exist throughout the creator’s lifetime plus 70 years after the death of the creator. At the most basic level, a trademark protects logos and slogans while a copyright protects creative intellectual design. However, the copyright doesn’t protect short phrases often found in a logo; that is protected by the trademark.
Trademark: Trademarks protect names, terms, and symbols that identify and differentiate a company and its goods. A trademark gives the consumer the ability to distinguish one company’s goods from another’s. A trademark can include phrases, symbols, or designs, as well as images, colors, and even smells and sounds.
Protection: A registered trademark offers protection against improper use. The owner of a federally registered trademark can sue for infringement. It also helps the owner defend against imported goods that might infringe upon the trademark. Trademark law is handled at the state and federal level. Different laws afford different protections. A federally registered trademark offers more protection than a state level trademark.
Registration: Trademarks are registered with the Patent and Trademark Office or USPTO. A registered trademark offers the owner more protection against improper use, but a trademark doesn’t have to be registered to receive protection. However, enforcement is easier when the trademark is registered. A company name or product name can be trademarked. These are an important business asset. Controlling the mark and its use are important for a company’s brand management. A trademark is not automatic. Registering a trademark (or receiving the legal protections) requires two elements, distinctiveness and use. Distinctiveness means that it is unique enough to be closely associated with a particular product or company. This is often dependent upon context.
Types of Trademarks
There are many types of trademarks.
• Arbitrary trademark: The trademark has no relation to the use or product, like Android’s creature.
• Fanciful trademark: The trademark has no meaning on its own, as is the case for Google.
• Suggestive trademark: A trademarked word suggests what the product is, like Coppertone or Netscape.
• Product packaging or trade dress: The design of the product or packaging is trademarked.
A copyright and a trademark are protected for different amounts of time. A trademark is protected forever as long as proper procedures are followed. It must be renewed every 10 years. During the renewal process, a fee must be paid and use must be shown. A copyright lasts for the life of the author, plus 75 years. Material that doesn’t have an author retains the copyright for 95 years from publishing or 120 years after creation, whichever is shorter. A copyright will eventually fall into the public domain. A trademark will not. A trademark retains protection for as long as the trademark is renewed.
A trademark and a copyright have different symbols. A copyright is a circle c mark, like this ©. Registration of the copyright is not necessary to use the mark. An unregistered trademark or trademark that is not yet approved is indicated by a ™. Once the trademark is registered, it’s denoted by a ® mark. It is illegal to use this symbol without registering the trademark.
Prosecuting online infringement of a copyright has come into the 21st century. With the Digital Millennium Copyright Act or DMCA, it is easy to process online copyright infringement. This is not the case with online trademark infringement. There is no digital process to protect online trademark infringement. For online trademark infringement, prosecution must follow the steps of an ancient, slow system.
Both a trademark and a copyright are intellectual property. Intellectual property is any creative work, including work in an intangible form.
Patent: A patent is another type of intellectual property protection. A patent most often protects scientific inventions and industrial designs. To be eligible for a patent, the invention must do something or have a function. A patent is registered through the USPTO.
Application of Law
As the world becomes more and more digital, intellectual property laws struggle to keep up. Law changes more slowly than the rest of the world. There are wide-ranging protections for both copyright and trademark. Unfortunately, what is protected under those laws can be disputed in the changing digital marketplace. Depending on what asset you are trying to protect, you might need a copyright, a trademark, both, or even some other type of intellectual property protection. There can be significant overlap between trademarks and copyrights. It’s better to have more protection than necessary than not enough. Trademarks and copyrights are important because they give a company or person protection against unauthorized use of their intellectual property.
Knowing the difference between a copyright and trademark also allows proper use of the intellectual property within the company. Improper use of a trademark can dilute it, which is a type of overuse. A diluted trademark becomes generic and may no longer identify or distinguish a company. Not enforcing trademark infringement also plays a role in dilution. This isn’t the case with a copyright. You can choose when and if to prosecute infringers. Knowing the difference between the two also saves you from looking foolish by trying to enforce a copyright with trademark laws.
Reasons to Use a Trademark or Copyright
The most important reason to use a trademark or copyright is to protect the intellectual property and assets of your business. Many companies underestimate the value of their intellectual property. This is a mistake. Understanding trademarks and enforcing them is especially important for a new company because this is the way a company distinguishes itself from other companies when entering the marketplace. An indistinguishable trademark limits the market value of the company and its products. Trademarks that are too similar cause confusion for consumers.
Trademark and Copyright Symbols Explained
The ™ symbol denotes a trademark that has not been registered with the USPTO. This includes trademarks that are in the process of applying to the USPTO for registration. The ™ symbol denotes that the logo or image is being registered or used as a trademark. Unfortunately, the ™ symbol doesn’t guarantee that the trademark will not be used by others. Unregistered trademarks don’t receive the same protection as those that are registered.
Registered Trademark ®
The ® symbol denotes that a trademark is registered with the USPTO. It is illegal to use the ® symbol on an unregistered trademark. An ® symbol cannot be used on a trademark that is not yet approved by the USPTO; this includes active applications. A registered trademark receives more protection under trademark law than an unregistered trademark. Registration also makes it easier to identify first use of a trademark. First use is important when deciding infringement lawsuits.
A circle c symbol or © is representative of a copyright. A copyright doesn’t have to be registered to legally use the © symbol. The © symbol notifies the public that this is a copyrighted work. The © symbol doesn’t have to be used for a work to be protected by a copyright. A creative work is automatically protected under copyright law. There are several differences between a copyright and a trademark, the simplest being that a trademark and a copyright protect different types of intellectual property. It’s important to understand the difference between a copyright and a trademark to make sure that your company is properly using the marks. Understanding of copyrights and trademarks also helps you protect your company from infringing upon someone else’s rights, as well as protecting the company from being infringed upon.
As seen above, the main difference between a trademark and copyright is that generally, copyright leans toward protecting works such as books, whereas trademarks protect your business’s brand.. Finally, whether an owner is required to register their work are another distinguishing factor, as well as the length of time the protection will exist. Despite the differences, both forms of intellectual property are extremely important for businesses. Therefore, business owners should understand and familiarize themselves with the benefits of obtaining copyright or trademark protection.
Copyright and Trademark Lawyer Free Consultation
When you need legal help with a trademark or copyright, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.
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