What’s the Difference Between a Copyright and a Trademark, and Why Does It Matter?

At least once a month, I get a phone call or email from a client who says: “Jarom, my business is absolutely blowing up! I need a copyright to protect my name and logo so some copycat doesn’t rip me off!” These clients are absolutely right about needing protection. What they are wrong about is what kind of protection they need. If you file for a copyright to protect your company, product or brand identity, you will end up gravely disappointed about the protection you actually get. This sort of confusion seems to be fairly rampant and understandable, given the relative complexity of the concepts involved. This article will attempt to demystify the subject – at least a bit. Copyrights and trademarks are certainly similar. They are legal mechanisms designed to protect intellectual property. However, they cover very different types of property in very different ways. Let’s start with copyrights. Copyrights protect “works of authorship” that have been tangibly expressed in a physical form. We’re talking about things like books, songs, movies, and television programs (i.e. This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.). Staying with the example of an NFL broadcast, the copyright allows the NFL to control how the broadcast of a game, such as the Super Bowl, is reproduced, distributed and presented publicly. A federally registered copyright also allows the NFL to sue infringers in federal court and prevent the importation of goods that infringe the copyright. Copyrights typically last for the lifetime of the author, plus 70 years for individuals, and 95 years from the date of publication or 120 years from the date of creation, whichever is shorter, for works created for hire or under a pseudonym. So, if the actual radio and television broadcasts of the Super Bowl are protected by copyrights, the term “Super Bowl” itself, as well as the Super Bowl logo and the NFL shield logo are protected by trademarks. A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods or services of one party from those of others. Technically, a “trademark” identifies and distinguishes the source of goods, while a “service mark” identifies and distinguishes the source of services. However, the term “trademark” is often used to refer to marks for goods as well as services. The “Super Bowl” trademark allows the NFL to prevent others from using that term in connection with live football games and television broadcasts, as well as things like stuffed animals, golf balls, and belt buckles. Trademark protection can last forever, so long as the trademark owner continues to use the mark in interstate commerce and files the correct renewal forms when they come due. While the example of the NFL and the Super Bowl is useful in explaining the differences between copyrights and trademarks, it is important to point out that you don’t need to generate billions in revenue in order for a copyright or trademark to be useful. Large and small businesses (and even just people with a great idea for the next big thing) are granted registered copyrights and trademarks every day. So, when should you get serious about filing a copyright or trademark application? The guide below should help: When Does Registering a Copyright Make Sense?

1. You have created a “work of authorship expressed in a fixed in a tangible form” that you believe has value. Maybe you have written the great American novel, taken what will become the iconic photograph of this generation, or written the song no one will be able to get out of their head this summer. If so, then a copyright will allow you to protect that work from being copied, stolen, or subject to other unauthorized use.
2. Basic copyright protection exists from the moment your work is created. However, federal registration of your copyright has the following advantages:

• The copyright becomes public record and you receive a certificate of registration.
• You become eligible for statutory damages and attorney’s fees in successful litigation.

When Does Registering a Trademark Make Sense?

1. You are using a particular name, logo, and/or slogan to market your goods and/or services, and you believe that name/logo/slogan is key to the success of your business. Building a brand is useless if a competitor can take that brand and use it to their advantage. Registering a trademark is a huge step in protecting the brand you have worked so hard to build.
2. You are offering your goods or services on the internet, or beyond the borders of your local market. Common law trademark rights are limited in geographic scope. When you register a trademark, you are protected nationwide.
3. You are concerned about a potential competitor coming in and using your name and/or logo in your local market. Registering your trademark can be a powerful deterrent to possible competition.
4. You haven’t quite started offering your goods or services yet, but your name and/or logo is so good, you’re afraid someone you have shown it to (or maybe someone else) might beat you to the punch. In the U.S., the first person/entity to use a trademark in commerce has the rights to that trademark. However, before you actually use the trademark, you can file an “Intent to Use” trademark application that will give you roughly 12 months (including extensions) to use the mark in commerce. If you can show the USPTO such a use within that time, your priority date for using the mark will be the date you filed your “Intent to Use” application. You will therefore be able to claim priority over anyone who began to use the mark in the interim.

Trademarks and copyrights can be powerful tools to grow and maintain the health of your business. Please contact me to discuss what makes sense in your individual situation. For now, just keep in mind, that the reproduction of this article can only be used with the expressed written consent of its author, Jarom J. Bergeson.