Trademark vs Copyright

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Trademark vs Copyright

Individuals who are new to the world of intellectual property may wonder what is the difference between trademarks vs copyrights.

Difference Between Copyright and Trademark

Although there are potential similarities between copyrights and trademarks, the differences between the two are significant.  These two types of legal safeguards can sometimes overlap, and this could result in the loss of both time and money when registering for the wrong type of protection.

What is a Trademark?

Trademarks designate the source of goods or services.  Trademark protection applies to things like words and logos that differentiate the source of a product or service from other brands. While this form of protection greatly benefits the trademark owner, its primary function is to prevent a likelihood of confusion among consumers.

Slogans, logos, brand names, trade dress, and even specialty colors can receive this form of protection. There are over 400,000 trademark applications seeking this protection filed with the United States Patent and Trademark Office (USPTO) each year.  Federal registration, while highly recommended, isn’t a requirement to receive certain protections.

Once you utilize a trademark in commerce, you have common law rights over it. It’s important to ensure it’s not already in use by doing a trademark search though, to avoid potential trademark infringement. Federal trademark registration is beneficial for the following reasons:

  • It puts the public on notice that you’re asserting your rights which may prevent trademark litigation.
  • It provides protection throughout the entire country.
  • It serves as prima facie evidence that you’re the owner of a trademark.
  • It can form the basis of international protection.

Unlike copyright protection, trademarks can last indefinitely. Between five to six years after registration, you’ll need to file a trademark renewal. You’ll have to do this again between nine and ten years after registration. From that point forward, you only need to renew your trademark every ten years. Failing to do so will lead to trademark abandonment, and this could result in someone else claiming ownership.

What is a Copyright?

A copyright protects an original work of authorship.  Copyright protection grants exclusive rights to the creator of original creative works such as a website, song, photograph, design, computer software, and text like a book. Ideas cannot be copyrighted, but the original expression of those ideas can.  A work is considered copyrighted the moment it’s produced in a tangible form (e.g. paper, sculpture, digital).

As is the case with trademark registration, there are benefits to federal copyright registration when submitting works to the United States Copyright Office:

  • Ability to file lawsuits in federal court for copyright infringement.
  • Public record serves as a deterrent against infringement.
  • Provides prima facie evidence of ownership.
  • Ability to seek statutory damages and attorneys fees in copyright litigation.

Unlike trademarks, copyrights don’t last indefinitely. Protection generally extends throughout the life of the creator plus 70 years. Once this time has elapsed, the work goes into the public domain. This is the case even if the work isn’t registered with the U.S. Copyright Office.

Trademark vs Copyright vs Registered

The question of trademarks vs copyrights vs registration all comes down to whether you submit an application for federal recognition. The benefits of doing so in either scenario are numerous. The application process for registration, however, is different between these two forms of Intellectual Property.

Trademark Registration Process

  • While not required, a trademark search is advisable to avoid infringement.
  • Submit a trademark application designating the goods and services, dates of first use, specimen of use, and filing fee.
  • An examining trademark attorney receives your application in 3-4 months.
  • If no objections from examining attorney, trademark is placed in Official Gazette.
  • Third parties have 30 days from publication to Oppose the trademark.
  • Barring a notice of opposition, registration typically occurs four months after publication.

There are a variety of factors that could affect this process. Oppositions and trademark cancellation, for instance, could require you present your case to the Trademark Trial and Appeal Board (TTAB). You could also receive Office Actions from the examining attorney that require your response.  Additionally, you’ll need to submit a Statement of Use if you applied for an Intent to Use Trademark.

Copyright Registration Process

  • Submit a completed copyright application along with fees and a deposit specimen of your work.
    • Physical copies of certain types of works must be mailed in.
  • Works must be registered separately unless they’re part of a collection.
  • You’ll be contacted regarding questions or rejections.
  • It may take up to nine months for registration.

Copyright or Trademark a Logo

The primary overlap between a copyright and trademark is that a design can be protected as both.  If the design is used to designate the source of goods or services, it can be protected as a trademark.  And if the design is original enough, it can be protected as a copyright.

In most cases, however, copyright vs trademark examples are straightforward.

Copyright vs Trademark Examples

Copyright Examples

The 1997 film Titanic.

Every Stephen King novel.

Jagged Little Pill, a Broadway play.

Oriental Poppies, a painting from Georgia O’Keeffe.

Madonna’s Material Girl single.

Expansion, a sculpture by Paige Bradley.

Trademark Examples

Nike’s slogan, Just Do It.

Google as a brand identifier.

T-Mobile Magenta, a color trademark used by T-Mobile.

The distinctive logo of the NBA.

The three-tone chime utilized by NBC.

These copyright vs trademark examples showcase the differences between the forms of intellectual property. They also make it apparent just how much can fall under each type of intellectual property. The most important distinction to remember is that trademarks serve as brand identifiers while copyrights protect the works of brands or individuals.

Unauthorized use or reproduction of any of these examples could lead to litigation.

Copyright and Trademark Symbols

One of the most distinctive differences when it comes to copyrights vs trademarks is the symbol used to convey protection. While a copyright symbol or notice isn’t required for a work to be protected, using one can remove a potential defense in litigation. Without proper use of the symbol, someone could claim they were unaware they engaged in infringement.  The same is true for trademark infringement.

There are three forms of copyright symbols that are typically utilized:

  • ©: This encircled “C” is used for any copyright other than sound recordings.
  • ℗: This encircled “P” signifies copyright over a sound recording.
  • Copyleft: A reversed and encircled “C” grants a limited license of free use.

An appropriate copyright notice will include the symbol, year of first publication and a name to identify the copyright holder (e.g. ©2019 Mandour & Associates). Copyright symbols can be placed anywhere they are obvious or noticeable.

There are also multiple trademark symbols that are used to signify ownership:

  • ™: Typically used as superscript (TM), this typically denotes an unregistered common law trademark for companies that provide goods.
  • ℠: Typically used as superscript (SM), this typically denotes an unregistered common law trademark for companies that provide services.
  • ®: An encircled “R” conveys a registered trademark, regardless of whether the company offers goods or services.

The creator of an original work should use the copyright symbol even without first registering with the federal government. Although registration is still required for certain legal protections, use of the symbol is allowed.

If you have not yet registered your trademark or service mark, you can only use the common law symbols. Using a registered trademark symbol prior to registration carries legal consequences and can prevent you from receiving registration so it absolutely should not be done.

Improper use when it comes to copyright vs trademark logos can result in a lack of protection or serious penalties. This makes it important that you understand when and how to use these symbols.

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