Copyright Vs. Trademark - What Is The Difference?
When you want to protect your original ideas, you may be confused as to whether you should apply for a trademark or copyright. We'll break down the difference between these two terms and show you how they can help you protect your work. The information provided here is for general information only and should not be used as legal advice.
Trademark Vs. Copyright
|Necessary document||Trademark Application Worksheet||Copyright Notice|
|What it protects||Recognizable elements of brands||Original creative work|
|Governing body||United States Patent and Trademark Office||US Copyright Office|
|Applicable laws||US Code Title 15, Chapter 22||Copyright Term Extension Act|
|Does it expire?||No||Yes|
How To Enforce Your Trademark
- Register your trademark. By going through the trademark registration process, you'll help to prevent lawsuits and set yourself up to recover damages if your mark is misused.
- Watch for violations. If someone is using a mark that's similar to yours, you'll want to put a stop to it as soon as possible. Be on the lookout for anyone violating your trademark.
- Contact the other party immediately. Send a trademark violation letter that asserts your claim to the trademark in order to give them a chance to stop using it before legal action is required.
- File suit if necessary. If they don't respond, find an attorney who can help you explore your legal options.
Do I Need To Put The TM, R, or C Symbol On My Work For It To Be Protected?
You don't have to put any symbol on your work in order for it to be protected under copyright or trademark laws. However, these symbols can be useful in deterring those who may wish to steal from you. Remember that if someone violates your copyright, you'll have to pursue legal action, which can cost you time and money, so anything that may prevent a violation before it occurs is a good thing. And in the case of a registered trademark, including the symbol allows you to prove that the person who used your mark was aware it was registered, ensuring that you can sue for monetary damages. If you've gone to the trouble of registering your trademark, you might as well let the world know.
How Do I Get A Copyright?
Contrary to popular belief, you don't have to take any action such as mailing a copy to yourself in order to obtain copyright protection. All work is copyrighted as soon as it is put into a fixed medium. However, if you want to seek damages when someone steals from you, you'll need a copyright notice to prove when the work was created and show that you are the person who originated the work. For more information on how to avoid problems when someone steals your work, consult this guide to copyright notices.
What Kinds Of Work Can Be Copyrighted?
- Literary Works: written art such as novels, short stories, and essays, but also includes computer programs
- Musical Compositions: written music and lyrics
- Dramatic Works: plays, film screenplays, and TV scripts
- Pantomimes & Choreographic Works: ballet, dance, and mime routines
- Artwork: paintings, drawings, sculptures, maps, blueprints, and diagrams
- Audio-Visual Works: movies, TV shows, film strips, and slideshow presentations
- Sound Recordings: the actual recording of a piece of music or other recorded sound
- Architectural Works: blueprints as well as physical structure and design
The Trademark Registration Process
- Before filing your application, you should make sure to search the USPTO database to find out whether anyone has already claimed that particular trademark. Failure to search for existing marks is one of the most avoidable mistakes one can make.
- Identifying Your Mark. The USPTO suggests that you include a clear representation of the mark you want to register. This representation is used to file the mark in their search records and to print it in the Official Gazette and on the registration certificate.
- Identifying Your Goods And Services. Once your official mark has been chosen, you need to identify the goods and/or services to which the mark will apply. During this process, you need to make sure to identify the specific nature of the goods or services, following the Acceptable Identification of Goods and Services Manual.
- Paying Required Fees. Your application filing fee will be based on 3 distinct factors: number of marks, number of classes, and the application filing option selected. Please note that there are no fee refunds.
- Monitoring Your Application Status. You can track the progress of your application through the Trademark Status and Document Retrieval (TSDR) system. It is recommended that you check your application status every 3-4 months.
You're probably familiar with the idea of a registered trademark, and have seen the symbols on products that alert you when a company has one. There are also many lawsuits in the media related to copyright infringement, but which one is right for your business? Let's take a look at the difference between copyrights and trademarks so you can understand how they may be beneficial to you.
A trademark is any recognizable element that helps people differentiate your business from others. It can be a symbol, design, or even a phrase that represents your business. Trademarks are important in order to protect the integrity of your brand, and the best way to understand how they are used is to explore some cases of trademarks and when they are enforced.
If you watch professional football in America, you're likely familiar with the symbol for the National Football League, and the logos for its teams. Those are trademarks, meaning you can't just create your own merchandise that says "Miami Dolphins" on it and sell it without the league's involvement. The term "Super Bowl" is also a trademark, which is why unaffiliated commercials have to use the phrase "the big game" when describing it if they don't have a deal with the NFL.
Imagine if some other league started using the same shield logo and the same team names. They could trick people into buying tickets and merchandise for an inferior product. The league's trademark protects them from that. Brands like Nike have protection for the swoosh logo so inferior products aren't sold with their trademark, which would not only flood the marketplace with similar products, but would make them look bad if their brand is associated with lousy sneakers.
If you have a product that stands out, but you have competitors who have a lot of money, a trademark is vital. They could pump out a similar product quickly and overwhelm the marketplace, so the only thing keeping you separate in the eyes of the consumers is your trademark. When wealthy competitors want to steal from you, it's important you have all your paperwork in order. Be sure to read our our full guide to trademarks. Scroll below this video to read it.
Lawsuits come about when one company feels that another is borrowing its imagery or slogans in a way that hurts their business. Frosted Flakes used Tony the Tiger to sell its cereal for years, and Exxon also used a tiger in its famous ad campaigns. Frosted Flakes did not want anyone confusing them with Exxon, so they filed a lawsuit. This happens all the time when one company becomes successful and others try to copycat them, even if they are in unrelated industries.
But when they're in the same industry, dilution of the brand is at issue. That's why Under Armour sued Nike over use of the "I Will" slogan from their ad campaign. One could argue that the phrase is too common to be trademarked, but Under Armour argued that they need to stand out in order to compete with Nike. If everyone started using the slogan, they would no longer stand out, and therefore it would hurt their business.
You may have seen two different symbols, the "R" symbol and the "TM" symbol, on various products, and wondered what they meant. Let's go over what these symbols mean and how a registered trademark differs from an unregistered one.
The "R" symbol you see on products denotes a registered trademark that has been filed with the federal government, things like the term "Breakfast of Champions" found on Wheaties cereal. However, you do not have to register a trademark for it to be enforceable. When you see that "TM" symbol, that's an unregistered trademark, but trademarks are valid even if they are not registered. So why do people do it?
You can sue someone for violating your trademark even if you haven't registered it, but you will be subject to the laws in the state where you file the lawsuit. But with a registered trademark, you can qualify for federal jurisdiction, simplifying the process and ensuring you can seek more in damages. It also proves the date your work was created, providing you with a better case.
Because the laws differ in every state, you'll want to be familiar with your local laws to know what choice is right for you. Check out our full guide to copyrights and trademarks right on this page. Scroll beneath this video to read it.
Copyright differs from a trademark in that it is given to the originators of a creative work. Copyright extends to written works, designs, musical compositions, film, and other artistic works, and is extended automatically when the work is put into a fixed medium. You can create a copyright notice to register your work, and the process is a bit simpler than applying for a trademark.
Going back to the example of professional football, while the NFL shield is a trademark, the broadcast of the game is copyrighted, providing two different forms of protection for the league. If your brand has a logo, that's a trademark of the brand, but the person who designed the logo can have a copyright for the design, ensuring that you can't put it on any additional products unless you have an agreement in place with them.
Generally, you will own both the copyright and the trademark for your logos, but just like a trademark, it's wise to register a copyright because it gives you proof of when it was created, and allows you to sue for damages if someone uses it, and it's important to be able to prove that you are the author.
Consider Mike Tyson, who thought it was okay to show his own face in the movie "Hangover 2," but faced a copyright suit from his tattoo artist, who claimed that the similar tattoo put on Ed Helms in the movie violated his copyright. We aren't lawyers, and this isn't legal advice, but if you're going to mess with Mike Tyson, you should have your paperwork in order.
If someone violates your trademark or copyright, you should find an attorney who can help you explore your legal options. With either, it's important to file the necessary paperwork now so you can protect yourself in the future. Be sure to read our guide to trademarks and copyrights. Check it out beneath this video.
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