Do You Know the Difference Between Copyright and Trademark?
March 15, 2017
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.
Copyright law protects original works of authorship. This includes novels to newspaper articles, to television programs and movies, to written staff music or audio recordings, to paintings, drawings and sculptures. In general, if it is an artistic work of physical creativity, but not a process or machine, it is protected by copyright law.
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, 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.
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.
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.