What is a Trademark and What is a Copyright?

A trademark and a copyright are both types of intellectual property protection that afford a way to defend against unauthorized use. While trademarks and copyrights both relate to intellectual property, each protects a different type of asset. Trademark and copyright registrations and the associated laws vary internationally. For this article, all information is for the United States unless specifically noted otherwise.

Copyright

A copyright protects original, creative works fixed in a tangible medium. This includes books, movies, songs, photos, artistic creations, web content, choreography, poetry, and writing. This definition includes several important concepts.

Original

An original work is one that the author created through his or her own effort. An original work cannot be something that's copied or modified from an existing work.

Creative

A work must have a creative aspect. For example, a basic list of 20 websites or people cannot be copyrighted. However, if the list is curated and explained, then it is eligible to receive a copyright. Though a creative work can be copyrighted, the ideas within the work cannot. For example, the book Twilight cannot be reproduced without permission from the copyright owner. But that doesn't mean that no one can ever write a book featuring a similar storyline about vampires. A copyright protects the creative work, not the ideas.

Tangible medium

Tangible medium is a very broad term, especially with new and emerging developments. The term means that the work can be perceived, reproduced, or communicated, as opposed to something that is just an idea in your mind, which cannot be copyrighted.

Authorship

Authorship also comes into question as new technologies develop. For example, a Tweet may be protected under copyright law.

Use

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.

There is a special provision for music. Once a song is recorded and distributed, anyone can buy a license from a central agency. The copyright owner doesn't have to buy the license, of course.

Registration

A copyright can be registered with the United States Copyright Office. However, copyright protection for a creative work is automatic, so it isn't necessary to register a creative work to get access to it. However, registering your work with the US Copyright Office does afford you more rights and protection when infringement occurs. These rights are granted by the 1976 United States Copyright Act, which gives the author the exclusive right to use, distribute, or prepare derivative works.

It isn't necessary to add a copyright symbol to your work to stake your claim, whether the copyright is registered or not. But it is helpful to identify your work with your name or other mark. This is especially true for online work since it is easily used by someone else. Adding a name and date helps assess original authorship.

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 United States 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. For example, Apple is trademarked and so is iPhone. 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. For example, an apple cannot be trademarked but the Apple logo, which is an image of an apple, can be. The logo is an artistic representation, which is eligible for trademarking.

Use simply means that to receive approval of a trademark application or win in an infringement case, you must prove that the trademark was in use.

There are limitations to a trademark. A trademark cannot include descriptive terms. For example, Apple was denied a trademark for the iPad Mini because the word mini describes the product and therefore cannot be trademarked.

Real World Example

Trademarks offer protection for a brand within certain realms. For example, if your last name was Gap and you wanted to open a clothing store, you wouldn't be able to do so because there is already a company that owns the Gap brand. Alternately, you might be able to own a pizza place called Gap. This is likely legal as most consumers are unlikely to confuse the Gap clothing store with the Gap pizza restaurant. It's also unlikely that Gap clothing will expand into the pizza business.

Types of Trademark

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 Pepsi.
  • 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, such as the shape of Coca-Cola's bottle.

Trademark and Copyright Differences

A trademark and a copyright have similarities and differences. Both are legal protections for intellectual property, but not of the same kind.

Different Material

Intellectual property that can be trademarked cannot be copyrighted. Intellectual property that can be copyrighted cannot be trademarked. For example, a company can trademark its name and logo and copyright its videos and books.

There are a few exceptions that can be protected by both a trademark and a copyright. A logo is one example of this because it is a creative work and an identifying mark.

Registration

A copyright is automatic upon creation while a trademark is not. For protection to be enforced, a trademark must be registered. A copyright is registered through the United States Copyright Office. A trademark is registered through the United States Patent and Trademark Office.

Timeline

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.

Symbol

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.

Online Infringement

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.

Trademark and Copyright Similarities

Even with all the differences, there are similarities between a trademark and a copyright.

Intellectual Property

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.

Registration and Protection

Identifying the unauthorized use of intellectual property is easier if the intellectual property is registered. When you apply to register a trademark, the USPTO investigates whether that image or trademark is already in use. This is why it's important to register your trademark when you begin or even before you use it.

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.

Which Do I Need?

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.

If you're not sure whether you need a copyright or a trademark, consider consulting with an intellectual property lawyer. You can easily hire an intellectual property lawyer on UpCounsel for a small fee.

Why Are Trademarks and Copyrights Important?

Trademarks and copyrights are important because they give a company or person protection against unauthorized use of their intellectual property.

Knowing the Difference

Knowing the difference between a trademark and copyright gives your business an advantage over others. It allows you to protect your intellectual property, but it also keeps you from inadvertently infringing upon another's intellectual property. You can swiftly act upon infringement of your own 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. (You can't!)

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

Trademark ™

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.

Copyright ©

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.

Frequently Asked Questions

  • What is a trademark?

A trademark is protection for intellectual property such as a logo or symbol.

  • What is a copyright?

A copyright is protection for intellectual property that is creative, such as a book, blog, or photograph.

  • What's the difference between a copyright and a trademark?

A copyright protects different intellectual property than does a trademark. A trademark and a copyright also receive different protection in intellectual property law.

If you're interested in applying for a copyright or trademark but aren't sure how, consider posting your legal need to consult with one of UpCounsel's intellectual property attorneys.