Trademarks vs. Copyrights:  What You Need To Know

For lawyers and non-lawyers alike, the differences between trademarks and copyrights can sometimes be a little confusing.  Here is a little primer on what you need to know.

Generally Speaking

Trademarks protect words, phrases, symbols, or designs that identify and distinguish sources of goods and services from one party to another.  Examples include brand names, slogans, and logos.  Trademark law is designed to protect the use of words, phrases, symbols and logos in such a way to minimize the possibility of consumer confusion in the marketplace.   

Copyrights on the other hand protect original works of authorship including literary, musical, and artistic works such as poetry, novels, songs, and movies from unauthorized display or use.  A copyright holder has the exclusive right to print, display, publish, distribute, and/or perform their works.  Importantly however, unlike trademarks, names, slogans, phrases, and titles are generally not protected by copyright law.  While artistic works can be copyrighted, generic logos generally do not reach the requisite level of creativity to qualify for a copyright. Many clients are under the false impression that their logos are automatically protected by copyright law, but that is generally not the case.  Only logos that are extremely original and ornate artistic creations are eligible for copyright protection.  Even in those cases where copyright is available for logos, trademark registration is the only way to fully protect the owner rights. 

To reiterate, trademark law is aimed at preventing consumer confusion and it does this by ensuring names, logos, phrases, and slogans can be exclusively used to the exclusion of competitors.  On the other hand, copyright law is aimed to protect the unauthorized use,  display or performance of an eligible copyrighted work.  Being that trademark and copyright laws protect different aspects of assets and creations, they each have their own advantages, remedies, and registration processes. 

Trademark Registration Benefits

Trademarks are registered with the United States Patent and Trademark Office. Benefits of a successful trademark registration include:  putting the public on notice regarding the ownership of a mark, providing the trademark holder with a legal presumption of nationwide ownership over the mark, providing the holder the exclusive right to use the mark, and allowing the holder to bring a lawsuit against an infringer. Absent registration, the use of a trademark in commerce only provides the user with common law rights that are limited to the local geographic area where the mark was used, assuming such use predates the use of conflicting marks in the same market.

One final nugget here is that the incorporation of your business name does not give you a trademark over your incorporated name.  While you may register a trademark over the business name if it is being used in commerce, failing to do so gives other third parties the opportunity to file a trademark.  If a third party trademark's your business name and there is a likelihood of confusion then their registered trademark may serve as a basis to later prevent you from using it. 

Copyright Registration Benefits

What you have already probably heard is true:  Yes, copyright protection exists from the moment a work is created.  However, this does come with an important caveat.  In order to successfully bring a lawsuit for copyright infringement in the U.S. and be entitled to certain statutory fees including attorneys’ fees in court, your copyright must be registered with the U.S. Copyright Office.  So it certainly does make sense to register a work when there is a decent chance that others might use your work without authorization.  This is especially true when the work in question can be used to derive commercial gain. 

Contact Harp Law to learn more about trademark, copyright and brand protection.