Need Help? Give us a call.
1 (800) 386-3372
Is your business also a brand? Do you create original materials and assets for your business? If so, it’s important that you understand the difference between trademark and copyright?
Intellectual property and brand identity can be just as important as revenue when it comes to your business. Research shows that 43% of customers spend more money at brands they are loyal to, and 65% of a company’s business comes from existing customers. Your creative work is valuable—and you might not realize it requires specific protections.
For instance: what if someone starts selling a product using your company name and logo as an endorsement without your permission? What if you run an ice cream truck, and suddenly a taco truck comes along using your same truck jingle to attract customers?
Fortunately, you have the right to file suit against people who use your brand and intellectual property without permission. Copyrights and trademarks make that possible. Both are known as “intellectual property protection”—but what’s the difference between trademark and copyright and how do you make use of them?
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.
The main differences between copyright and trademark is that while both offer protection, they protect different types of assets and have different registration requirements.
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.
Still wondering what’s the difference between trademark and copyright? Don’t worry, we’ll dig into each.
According to the United States Copyright Office, copyright protects original works including “literary, dramatic, musical, artistic, and certain other intellectual works.”
For example, you can copyright original writing, art, research, audio recordings, or video materials, as long as the works are preserved in some form. Anything you create is considered automatically, internationally copyrighted by the creator at the time of creation.
Works that are not available in some tangible form, such as a speech that wasn’t written down or recorded, cannot be copyrighted. Other things that cannot be copyrighted are ideas, discoveries, principles, listings of ingredients or contents (although a recipe or instructions can be copyrighted), and works that are considered “common property,” such as calendars or height and weight charts.
In addition, works that are in the public domain, for which the copyright has expired, cannot be copyrighted again. In the U.S., this currently refers to works published before 1923.
There are many precautions you can take to make sure potential copyright infringers don’t use your work without permission.
For example, make sure your work is properly marked, such as signed or with a watermark, and that there’s a clear evolutionary footprint from the work to your business.
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 U.S. 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 United 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.
U.S. Patent and Trademark Office (USPTO) 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.”
In other words, a company can register a trademark for anything that essentially brands the product or company.
The Tabasco bottle with hexagonal screw top? Trademarked.
“Footlong,” all one word? Trademarked by Subway sandwiches.
Anything that identifies your company can be registered as a trademark—so long as it’s not already registered by somebody else. Are you starting to see the difference between trademark and copyright?
While we’re on the subject of trademarks, we should also mention service marks. A service mark is the same type of device as a trademark, but it is used to distinguish the services of one business from those provided by another.
An example of a service mark is the United Airlines slogan “Fly the Friendly Skies.” While the United Airlines name might be trademarked, their slogan which defines the service they provide, is service marked.
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. But you can always file an application online in less than 90 minutes through the USPTO website.
If, for example, you wanted to trademark your business name, you would check with your state trademark office to make sure the name is not currently in use, and then complete the registration process. Note that you can register a business name with your state or county clerk by filing a DBA, but this is not the same as trademarking your business name.
How do you indicate if something is legally trademarked? Simply use ®, the symbol of the registered trademark. Note that this is only for brands that have gone through the formal process with the USPTO.
If you haven’t yet finished the process, the little ™ is used to signify common-law rights in a trademark similar to the way copyright law works. Again, just make sure what your trademarking isn’t already in use. And remember: just because something doesn’t have a symbol by it doesn’t mean it’s not legally trademarked.
Hopefully, by now, you’re no longer wondering what’s the difference between trademark and copyright. It’s important to know your intellectual property rights and protect yourself accordingly. Worst case scenario, another party devalues your brand or credibility when it could have been avoided. Make sure you’re properly protected today.