Trademarks & copyrights often get confused because they both fall under the general umbrella of “intellectual property.” Business owners know that they have an invention, design, photo or brand, and that they need to protect it. But what is the right tool to do this? And what kind of protection does this tool get you? The answer depends on identifying what you are trying to protect and knowing the different protections afforded by trademarks & copyrights.
A trademark can be any word, phrase, symbol, or design that identifies and distinguishes the source of goods or services of one party from those of others. This is a broad definition but that is because almost any word, slogan, or design can be a trademark – as long as it is used to identify the source of a particular product or service. A trademark can be thought of as a company’s calling card – a way to let consumers know that a product or service originates from that company. When you think of the biggest brands in the world: NIKE, APPLE, GOOGLE, TESLA – these are trademarks that serve as a calling card to let you know that whatever products or services the marks appear on all come from a single company.
A copyright protects original works of authorship that are fixed in a tangible form, meaning they are not merely ideas but physical expressions of those ideas. Examples of copyrights can include photos, paintings, books, movies, songs, computer software, and even live performances. It is important to understand that a copyright does not protect the idea or concept behind the work – it only applies when those ideas are brought to life.
So how do you get a trademark or copyright?
Trademark rights in the US are established as soon as you start using the mark in the marketplace to sell your goods or services. These are called “common law” trademark rights, and will protect your mark from infringement in the geographic area where you operate. For example, if you sell SPARKY brand orange juice locally in Chicago, you would have common law trademark rights in the Chicago area, but a competitor could potentially sell SPARKY orange juice in California or New York.
A federal trademark registration, on the other hand, will protect you nationwide. So if you are granted a trademark registration for your SPARKY brand orange juice from the US Patent and Trademark Office (USPTO), it would protect your name from similar competitors throughout the US, as long as you were using the name first.
The process for getting a trademark registration can be lengthy, anywhere from 7 months for a “simple” application to several years if there are challenges to the mark from other users or the USPTO. To get a registration, an applicant submits an application with filing fee to the USPTO that specifies the word or design they are claiming as a trademark, describes the goods or services provided under that name, and provides proof of use of the mark in the marketplace. The proof of use (or “specimen” in trademark terms) is critical to a registration, as the USPTO requires use of the mark in commerce before issuing a registration.
Similar to a trademark, you have a copyright from the moment an original work is created and expressed in a tangible form, for example when you take a photo or create a sound recording. You do not have to register a copyright with the US Copyright Office to have a copyright, but you do need a registration if you want to bring a lawsuit for copyright infringement. Registration is also important because it gives you a public record of your copyright and proof of ownership. In the event of a successful lawsuit, registered copyrights allow you to claim statutory damages and attorneys fees.
Registering a copyright requires an application and filing fee to the US Copyright Office that describes the work and the owner, as well as a copy of the work to be registered. For example, if you are claiming a copyright in a photo, a copy of the photo would be sent to the Copyright Office. Copyright registrations usually proceed through the registration process faster than trademarks, but current processing times for “simple” copyright applications are about 3-11 months.
Trademark rights last for as long as you continue to use the mark in commerce to provide goods or services. However, the USPTO requires certain periodic filings that attest to your continued use between the 5th-6th and 9th-10th years after registration.
The length of a copyright registration depends on who created it. For works created by an individual, protection lasts for the life of the author, plus 70 years. For works created anonymously, pseudonymously, and for hire, protection lasts 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.
Copyrights and trademarks can also work together to protect different parts of the same creative work. Is it a brand name for a product you’re selling? In that case, a trademark would protect you from a similar-named product selling similar goods. Is it a picture that you took that you do not want reproduced without permission? Then a copyright would allow you to prevent unauthorized use of your photo without permission. Perhaps you have a website offering a service under your company’s name? Then a trademark can protect the name of the company and a copyright can protect the look of the website.
In sum, trademark and copyright are distinct tools for protecting your intellectual property. The choice between a trademark and copyright first depends on identifying what asset you are trying to protect, then deciding whether a copyright or trademark is the appropriate protection tool. Each has their benefits and limits, but knowing the difference will allow you to use them to their full advantage and protect your creative work.