What’s the Difference Between a Trademark and Copyright?
The difference between a trademark vs. copyright is that a trademark protects company insignia, whereas a copyright protects creative works. They also follow a different application process and last for varying periods. Intellectual property or IP, laws govern the protection, registration, and use of original works and marks.
Let’s examine how a trademark vs. copyright differs below:
What Is a Trademark?
The U.S. Patent and Trademark Office (USPTO) defines a trademark as any word, phrase, symbol, design, or combination that distinguishes your offerings from competitors. The USPTO reviews trademark applications, registers trademarks and enforces trademark law. Trademark searches are typically conducted by trademark attorneys or search firms, not the USPTO.
Upon approval, owners affix a trademark symbol to their protected works. They also hold the legal right to transfer ownership through a trademark assignment agreement.
How Long Does a Trademark Last? A trademark could theoretically last forever, so as long as someone is: a) actively using it and b) renewing it every ten years.
Here is an article that also defines how a trademark works.
What Is a Copyright?
A copyright safeguards original creative works preserved in a specific medium. For example, protections apply to books, photographs, films, and video games. They become effective when the owner creates them.
The U.S. Copyright Office (USCO) performs registers copyrights and maintains a database. Once registered, the copyright owner has a legal right to license copyrighted works via a copyright license agreement. Copyright searches are typically done by individuals or organizations seeking to determine if a work is protected by copyright or if it is in the public domain.
How Long Does a Copyright Last? A copyright lasts for the creator’s life plus a number of years after their passing. For corporations, the duration of copyright is 95 years from publication or 120 years from creation, whichever is shorter.
This USPTO article can also help you understand the difference between trademark vs. copyright.
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What Does a Trademark Protect?
A trademark protects company insignia that differentiates the company from market competitors. It can apply to a branded word, name, slogan, logo, or color scheme. Trademarks give owners exclusive rights to that specific mark, meaning third-party unauthorized use may constitute trademark infringement. However, there are certain limitations on trademark rights, such as fair use and the doctrine of genericide.
What Does a Copyright Protect?
A copyright protects your original works of creative expression. It can apply to artwork, audio recordings, books, choreography, movies, music, and photos. Copyrights prohibit their unauthorized duplication or exploitation for profit.
Trademark Examples
This trademark example features an entrepreneur going through a re-brand, and now she needs to update and register her company’s marks:
- Sarah is opening a brand new coffee shop called “The Venus de Milo”
- She is also an excellent painter and decided to paint a rendition of the Venus de Milo sculpture
- Sarah then photographs the painting and uploads it to her computer
- She converts the .tiff file to a .png and incorporates the image into her logo design
- Sarah then applies for trademark protection on the logo
In this example, even though Sarah created a copyrighted painting for her logo, the copyright wasn’t enough to protect the logo sufficiently. She had to utilize a trademark on the final output.
The following example helps us solidify our understanding of trademark vs. copyright relationships.
Copyright Examples
This copyright example features Sarah from above again, but now she wants to register her copyrighted painting for added protection:
- Sarah opened a new coffee shop and created a logo from an original painting she made
- She likes the painting so much that she decides to feature it online and in her shop
- Copyright protections automatically apply to original works
- However, Sarah wants to receive even greater legal protections since the painting is becoming the “face” of her brand
- Sarah registers her painting for copyright to accomplish this objective
- She already trademarked her logo, but she also registered the copyright on the inspiration behind it
- Sarah has adequately protected this aspect of her intellectual property and brand
Bad things happen to hardworking people every day, including intellectual property infringement. Unfortunately, many entrepreneurs forgo the proactive measures shown in the example above. However, the two can harmoniously achieve the intended outcome for trademark vs. copyright.
Do not assume that someone would “never do that to us because we’re so small.” Bigger fish in the market don’t mind profiting from your heavy lifting. If you need legal advice about protecting your brand, speak with a trademark lawyer to give you reassurance or a plan of action.
Does a Trademark Override a Copyright?
No, a trademark doesn’t override a copyright since they safeguard different types of work. For example, a trademark protects your company’s unique identifiers, while a copyright protects creative works. Therefore, only registered works will receive legal benefits and protection.
How Do I Figure Out Which One I Need?
Intellectual property embodies the distinctive characteristics of your business, which creates brand value profitably. Therefore, protecting your intellectual property through a trademark or copyright is critical for long-term business growth. You can determine whether you need a trademark vs. copyright according to the type of work you want to protect.
A trademark protects your trade. You need a trademark for:
- Brand names
- Color schemes
- Logos
- Product lines
- Signature scents
- Slogans
- Other types of trade dress
A copyright protects your creative works. You need a copyright for:
- Artwork
- Audio recordings
- Blogs
- Books
- Choreography
- Contracts
- Creative works
- Drawings
- Movies
- Music
- Paintings
- Poems
- Photos
- Pottery
- Screenplays
- Scripts
- Scores
- Software
- Video games
- Websites
- Written works
In some instances, you can copyright a creative work for use in a trademark. For example, you can copyright a drawing you later insert into your logo, which you can then trademark. However, the most direct way to determine the best option between trademark vs. copyright is by speaking with a trademark lawyer for legal advice.
What Are Some Common Trademark vs. Copyright Mistakes?
Businesses, particularly startups, agonize over business development. However, these businesses rarely devote sufficient attention to the intellectual property aspects of their operations, which may be due to unfamiliarity with IP concepts. As a result, your company could unknowingly lose valuation or position itself as a risky investment decision without being aware of common pitfalls.
Regardless of whether you’re considering a trademark vs. copyright, here are some of the most common mistakes to avoid:
- Mistake 1. Not conducting a preliminary and comprehensive trademark search
- Mistake 2. Choosing a generic trademark name or copying other’s creative works
- Mistake 3. Not registering your insignia or original works as soon as possible
- Mistake 4. Not contacting a copyright or trademark lawyer when you have questions
- Mistake 5. Not tracking registration renewals where applicable
- Mistake 6. Thinking that your business doesn’t need IP protection
- Mistake 7. Applying for the wrong registration and creating delays
- Mistake 8. Underestimating the power of trademarks and copyrights
- Mistake 9. Using a previous employer’s protected materials
- Mistake 10. Not identifying all intellectual property assets
- Mistake 11. Failing to perform adequate due diligence when registering overseas
- Mistake 12. Forgetting to affix a high-resolution image of the works on your application
- Mistake 13. Not creating an intellectual property strategy
- Mistake 14. Using online templates when licensing or transferring IP ownership to another party
- Mistake 15. Not asking for confidentiality agreements when discussing IP with vendors
- Mistake 16. Signing a licensure agreement that you didn’t fully understand
Early trademark and copyright registration and proper acquisition of intellectual property are critical for protecting a company’s IP rights. Consult with an experienced intellectual property attorney for assistance in navigating the trademark and copyright processes and ensuring the protection of your company’s intangible assets.
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