Trademark vs Copyright

Trademark vs Copyright

A trademark and a copyright both provide intellectual property protection, but they differ in the kind of property they protect. Sometimes the line between a trademark and a copyright can get a little blurry. For example, a musician can file a trademark for a certain phrase in a song, while also copyrighting the lyrics of the same song.

Understanding the conceptual differences between the two types of protection is crucial to safeguarding your intellectual property and your brand.

What is a Trademark?

A trademark is a word, phrase, symbol, or logo that serves to distinguish the source of goods of one party from those of another. While the most common trademarks are brand names, slogans, and designs, it’s also possible to trademark certain color schemes, sounds, or smells. The main goal of a trademark is to increase consumer recognition of your brand.

The symbol for a trademark is ™ , and you can use this without a federally registered trademark. Once your trademark is successfully registered, you can begin to use the registered trademark symbol (®). It is not mandated that you use the symbol, but doing so can send a message that you take the protection of your brand seriously. Additionally, if you use the symbol, a potential infringing party won’t be able to claim ignorance of the registration as a defense in court. This could affect your eligibility for obtaining damages.

The false usage of the registered symbol could have legal ramifications down the line, and cause your application to be rejected if you later decide to apply for the trademark through the proper channels. If your trademark isn’t registered, you should definitely only use the ™ symbol.

Registering a Trademark

It is not required that you federally register your trademark since you are still afforded some degree of protection from common law with an unregistered trademark.  However, typically this protection only extends to the immediate geographic area in which the trademark is used.  Federally registering your trademark provides you with a hefty legal advantage should any infringements occur.  To register your trademark, you must file an application with the United States Patent and Trademark Office (USPTO).

Your first step in registering your trademark is to conduct a trademark search. This will alert you to any existing trademark that might be similar to your desired trademark. Although it might seem like a simple task to plug in the name of your desired trademark and hit search, it’s a good idea to have a trademark attorney conduct the search for you, as they might be able to spot possible red flags that will interfere with you obtaining registration. For example, if a preexisting trademark sounds similar to your own, but is spelled differently, your application may be rejected.  If your application is rejected, you will lose your application fee without obtaining any rights. Therefore, it’s best to play it safe and have this process handled by a trademark lawyer.

The next step in seeking trademark protection is to file a trademark application. The application will ask for details about your trademark, and you will be required to provide proof that your trademark is being used in commerce (this can be a dated website screenshot, or a sample of your business’s advertising). You must also specify what kind of goods or services are associated with the trademark.  You should expect to receive a response within three months of the initial filing. Once an examining attorney has processed your application, they will alert you about any problems with your registration, which could either be a substantive issue like a conflict with a preexisting trademark, or a problem with the application itself, such as missing information. When your application is approved, it will be published for opposition.  This gives other trademark owners a thirty day window to oppose the registration of your trademark application. If the opposition period ends without anybody coming forward, your trademark will proceed toward registration.

Trademark protection lasts as long as the trademark continues to be used in commerce. You will need to renew the registration every ten years, and pay fees at regular intervals in order to maintain your trademark.

What is a Copyright?

A copyright is a form of intellectual property protection that protects works of authorship and art, such as websites, text, images, photographs, and music.  Ideas or concepts do not fall under the umbrella of copyright protection. For example, if you had an idea for a zombie apocalypse movie, you wouldn’t be able to copyright the concept, only the screenplay or finished film product.  Copyright owners have the exclusive right to their own work, giving the owner the ability to reproduce or distribute the work as they see fit.

Like the ™ symbol, the copyright symbol (©) can be used without federal registration. The typical format for using this symbol is to include it with your work, along with the year of the first publication, and the name of the copyright holder. You might also see “All Rights Reserved,” next to the symbol, which is an expression that no longer has much legal relevance, but could deter potential infringing parties. It is not a legal requirement to include the symbol, year of publication, or the name of the copyright owner in your work. However, failure to include this information could affect the amount of damages you potentially receive in the event of an infringement, as the absence of the copyright notice gives the defendant the ability to invoke an ignorance defense.

Registering a Copyright

Your copyright protections kick in as soon as you fix your original work to a tangible medium. Like trademarks, you are still granted a level of legal protection even if you haven’t federally registered. Still, it is much harder to successfully enforce a copyright without proper registration.

The United States’ Copyright Office (USCO) handles copyright registration. In order to register, you will need to submit an application, a nonreturnable copy of the work you want to register, and an application fee. Unfortunately, this isn’t the speediest process.  It can take up to a year to obtain registration.

Trademark Infringement vs Copyright Infringement

Trademark infringement and copyright infringement are similar in that it is largely the responsibility of the trademark or copyright owner to monitor the usage of their intellectual property.  Setting up a Google alert is a good way to keep an eye on any potential infringement. You can also have a trademark attorney set up a trademark watch for you. If you fail to respond to violations of your trademark or copyright, the damages to your company could be catastrophic, both in terms of monetary damages and the cost to your reputation.

When it comes to registering your trademark or proving unlawful use of a trademark, cases typically hinge on the issue of  likelihood of confusion. The concern is if consumers are likely to confuse the trademarks, and thus be misinformed about the source of the products or services. The trademarks do not have to be identical for there to be likelihood of confusion. For example, if two shoe stores have similar commercial impressions and are both named after fruits, consumers may be likely to believe the two companies are related. If the industries are different enough, customers are less likely to be confused. Consumers won’t likely believe, for instance, that a business which manufactures vacuum cleaners is the same company that produces automobile tires, even if the company’s names are identical. Likelihood of confusion protects consumers from making misinformed purchasing decisions due to not understanding the source of the goods they are buying.

With copyrights, likelihood of confusion doesn’t come into play.  Instead substantial similarity and access are the key inquiries.  For instance, if you took a photograph of a beautiful lake, your photo of the lake is protected by copyright. However, if another photographer was to visit the exact same spot, during the exact same time of day and snap a picture, their photo wouldn’t be in violation of copyright, even if it was almost identical looking to your own.

If you notice an infringement of your trademark or copyright, your next step in either case will be to send a cease and desist letter to the infringing party. This letter will demand that all infringing activity cease immediately, or further legal action will be taken. The letter can also demand damages, if, for example, the infringing party has profited from the unauthorized usage of your trademark. Your best bet is to have a trademark or copyright lawyer send the letter. A cease and desist letter is more likely to be ignored if it is sent by the trademark or copyright owner themselves, or if it is sent by a lawyer that doesn’t litigate trademark or copyright cases.

When Trademark and Copyright Overlap

In some instances, trademarks and copyrights can overlap, and it can be confusing about where the line is drawn. The overlap can occur with a logo which can be protected by both a trademark and a copyright.  If the logo designates the source of goods, then it can be protected as a trademark.  If the logo contains a design element that is an original work of authorship, then that portion of the logo can also be protected by copyright.

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