Most people have seen the © or TM symbols that appear in the footers of websites or books, or after a brand name.
Copyright and trademark protect different types of intellectual property. are two sets of legal rules put in place to protect the owner of specific types of assets. If someone uses what you’ve copyrighted or trademarked, you have grounds for compensation — whether in the form of monetary relief, injunctive relief, and potentially other damages.
As a business owner, it’s important to know some of the ins and outs of these measures, as they may help you protect your intellectual property. Of course, consulting counsel with expertise in these particular areas is the best way to ensure you get it right.
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But before you file for a trademark or copyright, it helps to understand the general differences between the two. Of course, this filing process can be complex, so it is always best to consult with counsel who has expertise in intellectual property law.
What is a Trademark?
According to the U.S. Patent and Trademark Office, a trademark is a brand name. A trademark includes any word, name, symbol, and/or device that identifies and distinguishes the source of goods and services of one party from those of others.
A trademark typically protects brand names and logos used on goods and services. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than goods. The term trademark is generally used to refer to both trademarks and service marks. If a company wants to protect its brand from someone else using it, they would register for a trademark.
A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than goods.
Trademarks are protected in the U.S. at both the federal and state level. At the federal level, the primary source of trademark protection is the Lanham Act, which is administered and enforced by the U.S. Patent and Trademark Office (USPTO). The USPTO regulates registration of trademarks on the federal trademark register. At the state level, trademarks are protected by common law unfair competition principles and state trademark statutes.
To be protected as a trademark at the federal level, a mark does not need to be registered with the USPTO. That is because trademark rights in the U.S. arise from use on or in connection with goods or services. Unregistered trademark rights are generally limited to the territory in which the mark is actually used.
Federal registration of a mark can confer certain benefits on the trademark owner, such as evidentiary presumptions relating to ownership of the mark, validity of the mark, and exclusive right to use the mark nationwide in connection with the goods/services covered by the registration, and the right to use the registered trademark symbol (see below).
There are two types of trademarks:
- ™ or SM: The TM symbol is used for goods and the SM symbol is used for services to indicate that you have adopted the mark as a trademark or service mark. These symbols are used for common law trademarks, which are trademarks that are in use but have not yet been registered.
- (R): This symbol is for trademarks that are registered with the USPTO.
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Trademarks are usually made for names, symbols, catchphrases, figures, and lyrics. For example, the Nike swoosh symbol, the phrase "Just do it" and the name Nike are trademarked. In essence, Nike has three separate trademarks for its symbol, slogan, and name.
Trademarks are meant to protect the brand. If Nike hadn't trademarked "Just do it," anyone could use the phrase in branding and advertisements. Doing so would dilute Nike's brand, resulting in a loss of revenue by the corporation.
What Makes a Good Trademark?
Generally, there are four categories of trademarks. The category your mark falls into will impact both its registrability and your ability to enforce your rights in the mark.
- Fanciful and Arbitrary Marks: Fanciful marks are made-up words with no dictionary or other known meaning. Kodak is a strong fanciful mark. Arbitrary marks are actual words with a known meaning that have no association/relationship with the goods protected. Fanciful and arbitrary marks are the strongest and most easily protectable and registrable. Apple makes computers; that’s arbitrary.
- Suggestive Marks: These marks suggest qualities or a connection to the goods or services, but don’t otherwise have any connection. Citibank is a suggestive mark for financial services; it implies it, but isn’t explicit.
- Descriptive Marks: These marks describe the goods and/or services. Before it was called DSW, it was called Designer Shoe Warehouse; that’s describing what the store is. Descriptive marks are considered “weak” until they have acquired distinctiveness.
- Generic Mark: This is a word or phrase that’s a common, everyday name for goods and/or services. For example, “computer store.” That’s not a brand. Generic words can’t qualify as “marks” in the legal sense and are not registrable or enforceable against third parties.
Trademark registration can be cancelled if you don’t file the required maintenance documents during the specified time periods. A federal registration lasts 10 years, and to ensure you keep it for another 10 years, you need to continue to use the mark in commerce and comply with the registration maintenance requirements. These include timely filing of declarations of continued use or excusable nonuse and renewal applications.
To recap: just because you have a business name, it doesn’t mean you have a trademark registration. You have to use the name in commerce as a trademark and the name must be distinctive in order for it to become a common law trademark. And to obtain the benefits of a federal trademark registration, you have to make sure that you apply for and get a registration through USPTO.
What is a Copyright?
Copyright is a type of intellectual property protected by U.S. law for original works of authorship fixed in a tangible medium of expression. Copyright protects original expression of idea, such as a screenplay, story, song, sculpture, painting, or architectural plan. According to the U.S. Patent and Trademark Office, the manner and medium of a work is virtually unlimited when it comes to copyright protection.
Copyright protects original expression of idea, such as a screenplay, story, song, sculpture, painting, or architectural plan.
Contrary to popular belief, your work doesn’t actually need to be registered with the Copyright Office to be protected under copyright law. Once your original work is published, or exists in a "copy or a phonorecord for the first time", it’s protected. That said, registration is recommended for a number of reasons, including the fact that registration is necessary before an infringement suit may be filed in court.
However, it also has a limited time frame. The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. In general, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years.
What Copyright Doesn’t Protect
Now that you have a basic understanding of the trademark vs. copyright conundrum, remember: ideas can’t be protected. You might even have heard someone say, “I can’t tell you my idea because you’ll take it; once I get it copyrighted, I’ll tell you.”
Copyright does not protect facts, concepts, or ideas, although it may protect the way in which they are expressed.
Granted, the reason people say this is because the way in which an idea is expressed can in fact be protected by copyright law. But generally, that’s not how it works. You can protect the name of your idea with a trademark, though you have to use the mark in commerce. And you can protect your original story, but not the underlying idea.
Copyright does not protect facts, concepts, or ideas, although it may protect the way in which they are expressed. For example, two novels could both cover the topic of Ulysses S. Grant in the Civil War without violating each other's copyright. Each novel might have a unique approach, writing style, angle, and more, which make the novel original to the author. To learn more about works not protected by copyright, check out this resource from the U.S. Copyright Office.
The only way to protect an idea is to get a patent. If you will be filing for patent protection as a part of your business strategy, you should seek out a patent attorney with the specialized qualifications needed to help you succeed.
This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, legal or tax advice. If you have any legal or tax questions regarding this content or related issues, then you should consult with your professional legal or tax advisor.