The differences in trademark vs. copyright law are subtler than they might first appear. Understanding the difference between the two, and what they can protect, is a crucial part of protecting your company’s intellectual property.
Trademarks serve as identifiers
A trademark is anything that helps to identify a business, person, or other entity. This could be a slogan, a logo, or a symbol. Whatever it is, it sets something apart from the pack. There are a few different types of trademarks:
- Arbitrary trademarks: Trademarks that have no relation to the use for the trademark. For example, Apple is an arbitrary trademark when it comes to computers.
- Fanciful trademarks: Made up trademarks that don’t mean anything by themselves. For example, Kodak, Pepsi, and Exxon are all examples of fanciful trademarks.
- Suggestive trademarks: Words that suggest what the products are. Krispy Kreme, Coppertone, and Netscape are examples of suggestive trademarks.
- Product packaging and trade dress: The overall design of a product and its packaging, such as the shape of a Coca-Cola bottle.
You may be able to gain trademark rights simply by using a specific symbol. The symbol will come to have an intrinsic link to your business name. However, for fuller protection, you should register the trademark with the United States Patent and Trademark Office.
Copyrights protect creative works
A copyright protects things like songs, literature, movies, photographs, and paintings—basically anything that you might create. For works created after January 1, 1978, copyrights usually last for the life of the author, plus 70 years. For works for hire, the copyright lasts 95 years after the date of publication, or 120 years after the date of creation.
Things you create for your business, such as films or marketing photography, may also qualify for copyright protection. You can register copyrights with the United States Copyright Office.
When you might use both trademark and copyright
Things aren’t always a case of trademark vs copyright. Some works fall under both umbrellas.
For example, consider your business’ logo. Since it identifies your business, it serves as a trademark. However, if it contains significant original creative work by you or someone on your team, it may also qualify for copyright protection. Note that simple logos, such as the American Red Cross logo, usually do not fall into the copyright category.
Why you should register your intellectual property
You do not have to register to receive trademark or copyright protection. However, registration is still a good idea, because you can only file an infringement lawsuit if you’ve registered your copyright.
Registering trademarks is also recommended. For example, if you fail to register a trademark and someone else starts using the same logo, you’ll have to jump through some hoops to show you used the trademark first.
In fact, you should seek to register your trademark even before you start selling products under it. This is because when you register a trademark, the US Patent and Trademark Office will conduct a search and let you know if you are infringing on a trademark that is already in use. If you are still confused, contact an intellectual property lawyer to get some answers.
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