Key Takeaways:

  • Copyright protects original creative works like literature, music, software, and art.
  • Trademarks protect brand identifiers such as names, logos, slogans, and designs.
  • Patents protect inventions and grant exclusive rights to the inventor.
  • Licenses allow IP owners to grant usage rights to others in exchange for compensation.
  • A single product or service may be protected by multiple forms of intellectual property.
  • Trademark vs copyright distinctions are important when deciding which type of protection to pursue for branding vs creative output.

Copyrights, trademarks, patents, and licenses are each a different form of intellectual property (IP) rights protection recognized by U.S. law. The distinctions among them can be subtle and often the same product or service may involve more than one of these IP rights. How can you tell them apart when deciding how to protect your company’s assets? Here’s how.

Copyrights

Copyright protects the rights of “authors” in their original creative works. Copyrightable works include artistic creations, like novels, paintings, films, and songs, but also business-related works like software code, website designs, architectural drawings, marketing reports, and product manuals.

The author of a copyrighted work has the exclusive right to:

  • Reproduce (print or copy), publish, perform, display, film and/or record the creative content.
  • Create derivative works from the original work (for example, updates, revisions, summaries, translations, and adaptations).

Copyright protection arises automatically at the time the work is fixed in tangible form, either directly or through use of a machine, like a computer or movie projector. Copyrights have a term equal to the life of the author plus 70 years. If a company is the owner of the copyright, it has a term equal to 95 years after the date the work is first made public.

Copyrighted works can be registered with the U.S. Copyright Office. Registration is optional but highly recommended. Registration provides legal benefits to the author, including the ability to enforce the copyright against infringers in court. Copyrighted works (registered and unregistered) can display the © symbol to provide notice that the author considers the work to be protected by copyright.

How Copyright Differs from Trademark Protection

While both copyrights and trademarks are forms of intellectual property, they serve fundamentally different purposes. Copyright focuses on protecting creative expression — such as books, music, software, and visual art — from being copied or exploited without permission. Trademarks, by contrast, identify the source of goods or services and protect brand identity in the marketplace.

For example, if you create an original illustration, copyright protects the artwork itself. But if you use that illustration as a logo for your business, you may also need trademark protection to secure the image as part of your brand.Copyright arises automatically upon creation and fixation in tangible form, while trademark rights generally require commercial use in commerce, and registration enhances those rights.

Trademarks

A trademark is a symbol, word, slogan, design, color, or logo that identifies the source of a product or service, and distinguishes it from those made or provided by others. Trademarks can represent:

  • The product or service itself (ex. iPhone)
  • A feature or element of the product or service (ex. FaceTime)
  • The manufacturer or provider of the product or service (ex. Apple).

A “service mark” is a trademark that identifies a service instead of a tangible product.

The owner of a trademark has the right to prevent infringers from unfairly competing with the owner by using marks that are “confusingly similar.” In the United States, trademark rights can arise in two ways:

  • Automatically by use of the trademark in the marketplace in connection with a product or service (“common law” or unregistered trademarks).
  • By registration of the trademark with the U.S. Patent and Trademark Office (PTO) (“registered” trademarks).

Although not required by law, registering a trademark with the PTO confers many benefits on the trademark owner. For example, a U.S. trademark registration gives the owner nationwide rights to use the mark in connection with the goods and services included in the registration. Common law trademarks only create rights in the specific geographic territories where the owner is actually using it.

Common law trademarks can be used with the ℠ or ™ symbols. Registered trademarks can be used with the ® symbol. Both types of trademarks are valid so long as your business continues to use them. However, registered trademarks must be renewed periodically with the PTO.

Types of Marks and Scope of Trademark Protection

Trademarks aren’t limited to logos or names. They can also include:

  • Slogans (e.g., "Just Do It")
  • Sounds (e.g., the MGM lion roar)
  • Colors (e.g., Tiffany Blue for packaging)
  • Shapes (e.g., the Coca-Cola bottle design)
  • Smells (rare but possible in specific industries)

Trademark protection only applies to marks that are distinctive and used in commerce. Generic or merely descriptive terms usually aren’t eligible unless they acquire distinctiveness through use (known as “secondary meaning”). Protection lasts as long as the mark remains in use and is properly maintained.

Patents

Patents protect the rights of inventors. A patent is a 20-year exclusive property right granted by the PTO for an invention.

A patent entitles you to exclude others from making, using, or selling your invention. Once your patent is issued, you have an obligation to enforce it against unauthorized third parties violating your rights. If you don’t, a court can declare your patent “abandoned” and unenforceable.

Most patents are utility patent that protect “any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.” To obtain a utility patent, you will need to prove to the PTO, through claims in your patent application, that your invention is useful, novel and non-obvious. Other types of patents often sought by businesses include:

  • Design patents, which concern “new, original, and ornamental design embodied in or applied to an article of manufacture” not affecting the article's function;
  • Business method patents, which protect new methods of doing business, such as those used in banking, tax compliance and e-commerce, for example; and
  • Plant patents, which protect invented or discovered asexually reproduced plants that are new and distinct.

Read more here on Intellectual Property Protection 

Licenses 

Licenses are contracts that transfer IP rights from the owner of the rights (the Licensor) to a third party who wants to use them (the Licensee). They can be exclusive (rights are granted to only one Licensee) or non-exclusive (rights are granted to multiple Licensees). A Licensee typically pays the Licensor a royalty in exchange for the right to use the IP rights. Royalties are usually based on a percentage of the revenue the Licensee generates from the sale of products using the licensed IP rights.

Licenses can be valuable assets for your business. For the Licensor, licenses can generate significant revenue stream from royalty payments. For the Licensee, licenses can enable it to sell superior products in the marketplace.

Licenses are usually drafted to provide for a fixed term (say, three years) and must be renewed by the parties to extend the term. Renewal is sometimes conditioned on payment of minimum royalties.

Common Licensing Scenarios in Business

Licensing agreements appear across industries and IP types. Some common examples include:

  • Software Licensing: Grants users the right to install or access programs under specified conditions.
  • Franchise Agreements: Allow franchisees to use the brand, logos, and business methods.
  • Merchandising Licenses: Enable manufacturers to produce products using another company’s copyrighted characters or logos.
  • Music Licensing: Allows businesses or creators to use copyrighted music in films, ads, or public spaces.

Well-drafted licenses address royalty structure, usage limitations, renewal conditions, and intellectual property ownership, minimizing disputes.

Can a Product or Service Have Multiple Forms of IP?

Yes. For example, a mobile phone might use technology (data encryption) and include features (a camera) that have been patented. The phone may be marketed under a brand name that has a registered trademark. The look and feel of the phone’s home screen design may be the subject of a copyright registration. If the phone’s manufacturer hasn’t created all of the phone’s IP by itself, it may have licensed some of the IP from others.

Images are another case where multiple forms of rights protection may be needed. Copyright protection for an image is common, but trademark protection may be required if the image is used to identify the source of a specific product or service. Similarly, clothing may present multiple rights protection issues. For example, artwork that may be printed, embroidered, or silk-screened on clothing (hats, t-shirts, etc.) may require copyright and/or trademark protection.

Trademark vs Copyright: Choosing the Right Protection

When deciding between trademark vs copyright protection, consider the purpose of the material:

  • Use copyright if you are protecting original content like written articles, photos, website code, or videos.
  • Use a trademark if you want to protect a brand name, slogan, or logo that distinguishes your product or service in the market.

For example, a website may use copyrighted code and images, but its brand name and logo require trademark protection. In many cases, using both protections together offers comprehensive coverage.

Support for IP Rights 

If you need help identifying or registering your company’s copyrights, trademarks, patents, or IP licenses, post your legal need on UpCounsel's marketplace. UpCounsel screens out 95 percent of lawyers to provide only the best lawyers from top law schools, like Harvard and Yale. UpCounsel lawyers have an average of 14 years of practice experience, and have provided legal services to companies such as Menlo Ventures, Airbnb and Google.

Frequently Asked Questions

1. What is the main difference between trademark and copyright? A copyright protects original creative works, while a trademark protects brand identifiers like names and logos.

2. Can I register both a trademark and a copyright for the same item? Yes. For example, an illustrated logo may be copyrighted as artwork and also trademarked if used in branding.

3. How long do trademark and copyright protections last? Copyright lasts for the author’s life plus 70 years. Trademarks last indefinitely, as long as they are in use and properly renewed.

4. Do I need to register a copyright or trademark to get protection? Copyright exists automatically upon creation, but registration enhances enforcement rights. Trademarks require use in commerce and benefit from federal registration for broader protection.

5. What happens if someone uses my trademark or copyrighted work without permission? You may have grounds for legal action such as an infringement lawsuit. Consult with an intellectual property attorney to evaluate your case.