What’s the Difference Between Copyright and Trademark?
Many people faced with intellectual property laws wonder whether they should copyright or trademark their creations. These two aspects of intellectual property law are both vital to business operations but are very different in how they are applied and defended, and in what aspects of your business they protect. Explore the difference between copyright and trademark, what protections each offers, and how an intellectual property attorney can protect your rights.
When you own a copyright, you have six exclusive rights, such as the right to reproduce the work, the right to prepare derivative works and the right to publicly perform or display the work, to name a few.
Copyright law is technically automatic. The moment you fix an original work of authorship in a tangible medium, such as writing it on a piece of paper, it is protected by copyright. While not necessary, copyrights can be registered with the US Copyright Office. This registration affords certain advantages, such as presumptions of validity, date of creation and ownership should you need to assert or defend your rights against a third party.
Trademark Law
Trademark law, in contrast, protects those elements of your business that act as a source identifier. This includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others and to indicate the source of the goods/services. This could be a phrase that serves as your business’ slogan. It could be your business logo. It could be your business jingle – like the NBC chime. It could even be your trade dress, such as product design, packaging or color, or a combination thereof.
The purpose of trademark law is to prevent consumer confusion in the marketplace by preventing competitors from using confusingly similar marks in conjunction with the sale of their products or offering of services. Like copyright, trademarks are obtained through use of the mark and do not require registration. However, trademark registration provides significant advantages and is strongly recommended.
Unregistered trademarks are shown by using a ™ symbol along with the mark. Registered trademarks use an ® symbol. Using the wrong symbol can create problems when asserting or defending your mark in court.
Copyright Protection vs. Trademark Protection
A major distinction between copyright and trademark is in maintenance and protection. To maintain your rights in a trademark, you must diligently police unauthorized third-party uses of the mark. Since the purpose of trademark law is to protect against consumer confusion, a trademark holder can lose its rights in a trademark if it fails to police third-party use and consumers no longer view the mark as a source identifier. On the other hand, there is no such policing requirement for copyrights.
Crossing Over
Sometimes, certain elements may be protected by both copyright and trademark. Consider, for example, the Lord of the Rings works by J.R.R. Tolkien. These works are currently still under copyright protection. In addition, the title and certain elements within the works are also protected under trademark law, since they have been used on goods or services as a source identifier. You would be hard-pressed to create an original story, for example, using the characters of Frodo and Aragorn and set in Middle Earth as they appear within the work since such elements are protected by both copyright and trademark law.
Defenses
There are certain legal protections and defenses that allow limited use of copyright and trademarked works by the public. These include fair use, which allows for the reference to copyrighted works or trademark, and small snippets for educational, research, review or “transformative” purposes, such as parody.
If you need help with intellectual property law, your best bet is to seek the services of an intellectual property attorney like those available at Scarinci Hollenbeck. We have many years of experience in helping people just like you square away their intellectual property rights. So if you have any questions or if you would like to discuss the matter further, please contact me, Shane Birnbaum, at 201-806-3364.
What Business Owners Get Wrong Before Meeting a Litigation Attorney
What should you expect when meeting a litigation attorney about a business dispute? You should expect to describe the dispute in your own words, hand over the most important documents, flag any deadlines or immediate threats, and leave with a clearer picture of the problem, what information is still needed, and the likely next steps. […]
Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract
Arbitration resolves disputes privately before an arbitrator whose decision is usually final, while litigation resolves them in court with full rights of appeal. Whether a business ends up in arbitration or litigation is often decided when it signs the contract, long before any dispute arises. Key Takeaways When facing a contract dispute, carefully consider your […]
Can You Own Part of a New Jersey Business Without a Written Agreement?
Can you own part of a business in New Jersey without a written agreement? Yes, it is possible. Under New Jersey’s Uniform Partnership Act, a partnership can arise when two or more people carry on a business as co-owners for profit, whether or not they ever intended to form one. Ownership doesn’t necessarily depend on […]
Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One
For New Jersey businesses, crisis preparedness should be viewed as a legal and operational function, not simply an emergency-management exercise. A well-designed crisis response plan can help preserve evidence, protect confidential communications, meet reporting obligations, limit unnecessary exposure, and prevent an already difficult situation from becoming a larger legal problem. Key Takeaways A serious crisis […]
Monmouth County's Next Development Wave: What Developers and Investors Need to Know
Monmouth County is entering a significant new phase of development. For those looking to acquire property or undertake a new project, understanding the market opportunity is only the beginning. The more important question is whether a particular property can actually be developed as contemplated and what approvals, agreements, and other conditions will be required to […]
Are Your Conversations with AI Shielded from Discovery? Courts Are Split
Whether a client’s prompts to a generative AI tool and the documents it produces are protected from disclosure depends on the case type, who claims protection, and whether counsel was involved. In United States v. Heppner, a New York federal judge ruled that a criminal defendant’s communications with an AI platform were protected by neither […]
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Sign up to get the latest from our attorneys!
Explore What Matters Most to You.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!
