If you own a business, you are probably aware that it is important to protect your intellectual property. Perhaps this has been on your radar for a while, but you’re not sure what intellectual property you have and where to start. For example, do you need a trademark? A copyright? Both?
Luckily for you, Concerto Law’s mission is to provide legal solutions that break through the noise of bad internet advice. To help you, I put together this post that describes the general distinctions between trademarks and copyrights.
What is a Trademark?
The U.S. Patent and Trademark Office (USPTO) defines a trademark as “a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.”
Translation: a symbol or word that identifies your business or your product.
Here are some examples:
- Color: Green tractors with yellow wheels (John Deere)
- Events: Rose Bowl Parade
- Fictitious Characters: the Pink Panther
- Logo: the Starbucks mermaid
- Brand Name: Gucci
- Product Name: McNugget
- Shapes: the Coca-Cola bottle shape
- Slogan: “A Diamond Is Forever” (DeBeers)
- Smell: the smell of Play-Do
- Sound: the MGM roaring lion sound
- Symbols: Nike “swoosh”
With that list in mind, let’s look at a common example. What do you think of when you see a black or white “swoosh” on a shoebox at a clothing store? Your mind immediately makes the connection with Nike. The Nike “swoosh” is a trademark that lets consumers know they are dealing with a product from a brand they know and trust.
How does a trademark benefit my business?
Trademarks are important because they distinguish your brand from competitors. Customers associate your trademark with a certain level of quality, value, customer service, trendiness, and other qualities.
- For example, we associate different qualities with Starbucks Coffee (fashionable, trendy, expensive) and Great Value Coffee (big-box store, inexpensive, different quality of beans).
While trademarks help businesses build their brands and goodwill, they also help consumers. Without trademark protection, consumers might not know which companies make everyday household products.
Wouldn’t you want to be completely sure the brand of shampoo you pick up at the drugstore is the one that doesn’t make your skin break out in rashes? If both shampoos are labeled “Herbal Essences”, how do you know which one is made by Proctor & Gamble and which one is the knock-off brand.
What is a Copyright?
The U.S. Copyright Office defines a copyright as “original works of authorship including literary, dramatic, musical, and artistic works” that are “fixed in a tangible medium of expression.”
Translation: an original, creative work that you can see or hear.
Here are some examples:
- Architectural works
- Artwork (illustrations, paintings, photographs, sculptures, textiles, etc.)
- Books, newspaper articles, blog posts
- Choreography (dance, ballet, mime performances)
- Plays, musicals, operas, tv scripts
- Podcasts, radio programs, books on CD
- Software programs, software code, video games
- Songs (both the instrumental composition and the lyrics)
- TV shows, movies, YouTube videos, Tik Tok videos
Copyright benefits begin at the moment of publication. Once you display, upload, publish, or perform your original, creative work, you own the copyright to that work. You can also register your copyright if you want to obtain additional rights, such as increased monetary damages if someone steals your protected work.
What does copyright protect?
Copyright law gives the creator the exclusive right to control how the creative work is used and distributed. These rights include the powers to:
- Create derivatives based on the work (make something similar based upon the work)
- Distribute copies of the work (that you can sell, lend, or lease)
- Perform the work
- Publicly display the work
- Reproduce (copy) the work
These rights allow you to control and monetize your creative works. You can sell or license some (or all) of these rights. For example, you can sell the right to publish a hardcopy book to a publishing house but retain the rights to publish the audiobook. You can license your work, which is common for digital works, such as tv shows, podcasts, and software.
What does a copyright not protect?
Copyright law only protects original, creative works. It does not protect:
- Book titles, song titles, business names
- Factual information, research data, and historical facts
- Generic type characters (grumpy man, rich bratty kid)
- Government works
- Ideas, methods, systems, literary plots, settings, and situations
- Names and phrases
- Public domain works (sufficiently old works are no longer protected)
- Utilitarian aspects of an object (the shape of a fork does not qualify for a copyright but the design etched on the handle can)
- Works created by non-humans (photographs taken by monkeys are not protected)
- Works without a minimum amount of creativity and originality (for example, recipes or menus)
How is a Trademark Similar to a Copyright?
Common Law rights.
You do not need to register for a trademark or copyright to enjoy legal protection. The US recognizes common law rights for both trademarks and copyrights. However, you receive greater protection by registering.
Both give you the right to limit how others may use your protected trademark or copyright.
Both allow you to sue for damages when others unlawfully use your protected trademark or copyright.
They are both property with the potential to generate income through selling or licensing your property rights. Both can generate income for you.
How is a Trademark Different from a Copyright?
Copyright protects the expression of an idea.
It does not protect the idea itself. For example, copyright protects the owner of Andy Warhol’s work “Campbell’s Soup Cans” but it does not protect the idea of painting or photographing a soup can.
Trademark protects the association of a product or service with a particular company.
Essentially, it is brand identifier. Others can create similar types of products or services but they can’t use the protected colors or symbols or slogans associated with your brand.
Copyrights have a defined lifespan.
Eventually, the creative work will become part of the public domain. That is why anyone can publish Pride and Prejudice; it’s copyright protection expired.
Trademarks must be continually used.
This is a use-it-or-lose-it system. You must also renew your trademark with the USPTO if you want to keep federal protections for your trademark.
When do I have both a Trademark and a Copyright?
Sometimes a work qualifies for both trademark and copyright registration.
For example, let’s consider an aspiring podcaster. Podcasts have been gaining in popularity the past decade, and now it seems almost every company has one. How does a podcast involve both trademark and copyright law?
- Trademark: The name of your podcast. If you register this name, you put everyone on notice that you are the only one with the legal right to use this name for your podcast.
- Copyright: The audio recording of each episode. The recording is an original creative work and it is fixed in a tangible medium (could be digital or an old-fashioned CD or cassette).
Need help deciding whether you have a Trademark or Copyright?
Need help? Do you need help deciding whether to register a trademark or a copyright? Are you curious whether and how you can monetize your intellectual property?
I would love to help set up your business for long-term success. Call me today at 814-706-1288 to set up a consultation.