Trademark vs. Copyright: Which one is right for you?
Trademarks protect brand names, logos, slogans, and more. They provide exclusive rights, amongst other legal protections, over the use of your brand. At the same time, copyrights protect creative work, including artwork, music, movies, books, etc. Copyright can apply to anything you create, such as writing, films, photography, etc.
Copyright applies to everything you create as long as it is original and doesn’t copy another person’s work or idea. A trademark protects your brand by preventing others from using your company’s trademarks which could impact sales of products under the company’s name.
A brewery that wants to protect the name or label of the new seasonal beer might want to apply for federal trademark registration. A writer who wants to protect an original screenplay should apply for a copyright application at the US Copyright office. There are times, though, when a combination of federal copyright and trademark registrations makes sense for your brand.
A cartoonist with an original idea for a series that includes multiple characters, names, logos, merchandise, and an original screenplay should pursue various types of intellectual property protection. The names, logos, and characters can be protected as trademarks. But additionally, I would advise the author to protect the characters and screenplay at the US copyright office as original works.
To better understand what intellectual property protections apply to your venture, you should consult with an intellectual property attorney.
Why Are Trademarks and Copyrights Important?
Under current US law, there are a variety of intellectual property protections available to small business owners, entrepreneurs, and creatives. Intellectual property protection provides legal benefits that give you the exclusive right to develop your brand identity or protect your artistic works.
Trademark and copyright registration processes are two common ways individuals and business owners can protect their brand and original works from unauthorized use.
Trademark Protection is for Brand Owners.
A trademark is a brand name, logo, slogan, or any other source identifier that can be registered by an individual or business at the United States Patent & Trademark Office (USPTO). US trademark law protects distinctive marks that are used in commerce. The trademark holder has the right to stop others from using a similar mark in connection with similar goods and services. A registered trademark is not just for a business name or logo. It can be the overall brand identity consumers associate with your goods and services.
An example of this would be Apple. The company brand, Apple, is a federally registered trademark and cannot be used without the consent of Apple, Inc in connection with its goods and services. In this case, I would not be able to register a mark the same as or similar to Apple’s branding (name/logos/slogan) in connection with music streaming, tv streaming, phones, TVs, tablets, and anything else that Apple currently sells or could reasonably be expected to sell without violating US trademark law. Apple protects its name, logos, colors, product packaging & design (including the iPhone), and much more through a robust trademark application process.
But brand protection through a federally registered trademark is not limited to major companies. A comprehensive and proactive brand protection strategy helps small businesses and entrepreneurs carve out a niche and separate themselves from the crowd of established brands. A basic brand protection strategy usually involves the following:
- Trademark applications: The registration process is under the authority of the United States Patent & Trademark Office (USPTO),
- Monitoring and policing services: Your trademark is only as strong as its enforcement. Lack of enforcement for trademark infringement can leave your brand and its registered trademarks weak with little to no protection. Therefore, working with a trademark lawyer offering trademark enforcement services is essential.
- Maintenance filings: Brand owners are responsible for filing the declaration of use, claim of Incontestability, and renewal filings in a timely manner to ensure your trademark protections do not lapse. The brand owner or the trademark attorney listed on the USPTO website will be responsible for timely maintenance filings.
Copyright Protection is for Original Works
cr: Ron Lach
Copyright protections include, amongst other things, a legal right that safeguards the original works of authors. Original works must be authored by a human and be minimally creative. Additionally, the work must be in a fixed form. It is an intellectual property right that protects literary and artistic works such as music, books, movies, photographs, software code, and other tangible works from being reproduced or used without permission.
A copyright owner does not need to register their original work at the US copyright office to have certain common law rights. Although, officially registering the original work gives you access to federal court for copyright infringement under US copyright law. Copyright registration allows a copyright holder access to the Copyright Claims Board (CCB), similar to a small claims court for copyright law matters. The CCB handles certain copyright disputes that claim up to $30,000 in damages.
Disney is one of the most litigious and aggressive intellectual property portfolio holders. They send enforcement letters and will file suit when they deem artistic creations to be an unauthorized duplication of their Intellectual property. In the past, Disney informed an individual that carving a Winnie the pooh in a child’s gravestone would violate US copyright law.
A more recent example is Disney claiming copyright infringement by an online retailer using Disney characters for selling items such as “face masks, stickers, Mickey ears, decals, key chains, hats, etc.” Disney can pursue this lawsuit because they own exclusive rights to license and prepare derivative works of its original artistic creations.
The owner of a copyright registration holds multiple rights over the creative work:
- Reproduction of the work,
- Derivatives based upon the original work,
- Distribution of copies of the work to the public,
- Public performance of the copyrighted material,
- Public display of the creative work
Sahil Malhotra
Sahil Malhotra is an Intellectual Property Attorney, who founded Drishti (“vision”) law because of his vision in protecting dreams and ideas.
He provided individuals and small businesses with an opportunity to enhance their IP’s value by helping them register trademarks and successfully argue against office actions. In addition to his training and experience, he has been deeply involved in the multifaceted IP portfolio at UIC and continues to be associated with IP organizations and conferences.
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