Key Takeaways
- Copyright protects original creative works, such as writing, music, software, and artwork.
- Trademarks protect your brand's identifiers. This can include names, logos, slogans, and symbols.
- Copyright usually begins automatically once you record an original work in a tangible form.
- A trademark must be distinctive. It cannot be too similar to an existing mark for related goods or services.
- You must register your copyright before filing an infringement lawsuit in the U.S.
You're probably accustomed to seeing the trademark symbols, ™ and ®, as well as the emblem, ©, which indicates a copyrighted work. But do you know what these designations really mean and when you need them for your business?
Knowing how and when to protect your brand can be challenging, but the decisions you make to register your intellectual property will ensure your business will stand out for years to come. In this article, you'll learn the differences between trademarks and copyrights and how to use these important legal protections.
Trademark vs Copyright: At a Glance
Although people often confuse the two terms, copyrights and trademarks are two different entities. In a broad sense, a copyright protects intellectual and creative works, while a trademark applies to names, logos, and phrases that identify your brand.
Here are some examples of the key differences between copyrights and trademarks.
| Feature | Copyright | Trademark |
|---|---|---|
| Purpose | Protects creators' rights over original works. | Protects brand identity and prevents consumer confusion. |
| Governing body | U.S. Copyright Office | U.S. Patent and Trademark Office |
| What it protects | Writing, music, artwork, software, films, architecture, and other creative works. | Business names, product names, logos, slogans, symbols, and other brand identifiers. |
| Duration | Generally, the author's lifetime plus 70 years. | Can last indefinitely if the mark remains in use and is properly renewed. |
| Cost | Registration fees vary depending on the application and work type. | Application and renewal fees vary depending on the filing method and number of trademark classes. |
What is a Trademark?
A trademark is a word, phrase, symbol, URL, or logo that identifies a product or service used to distinguish itself from competitors. Well-known trademark examples are McDonald's golden arches or Nike's "Just Do It."
Created by the U.S. Congress in 1946, trademark law is designed to protect both consumers and businesses from competitors who want to trick people into purchasing their product or service by capitalizing on an established brand name. When deciding on a trademark infringement, a court looks to whether or not a consumer is likely to be confused by the use of a competitor's symbol or brand.
Unlike copyrights, trademarks do not expire after a set period. As long as you continue to use the entity to represent your goods or services and renew your trademark at regular intervals, it belongs to your company forever.
Legal Requirements for a Trademark
A trademark must meet certain federal requirements before it can be registered with the U.S. Patent and Trademark Office. Here are 3 of the most important ones:
-
Distinctive: It must identify your goods or services and distinguish them from competitors.
-
Not confusing: It cannot be too similar to an existing trademark for related goods or services.
-
Valid filing basis: You must already use the mark in commerce or genuinely intend to use it.
What Can and Cannot be Trademarked?
Anything that distinguishes the goods or services of your company from a competitor in a commercial setting is eligible for a trademark. Examples include words and phrases, symbols, devices, and even colors.
What Cannot Be Trademarked?
• Proper names without consent • Generic terms or phrases • Government symbols • Vulgar, immoral, deceptive, or disparaging words or phrases • Likenesses of any U.S. President • Sounds (covered by copyrights)
When you own a trademark, you control the uses of that phrase or logo within your industry. For instance, if a trucking company uses the slogan "Just Do It," it would not be trademark infringement. Nike could only take another athletic apparel or equipment company to court because the unauthorized use of its trademark would be unlikely to cause confusion in this case.
What is a Copyright?
A copyright protects a wide range of original works, including literary, dramatic, musical, and artistic creations, such as poetry, songs, novels, plays, computer software, and architecture.
Unlike a trademark, a copyright does not last forever. Protection generally lasts for the life of the author, plus an additional 70 years. For works created anonymously or under a pseudonym, protection lasts 95 years from publication or 120 years from creation, whichever timeframe is shorter.
Although Article I Section 8 of the U.S. Constitution - known as the "Copyright Clause" - describes copyright protection, copyright law is complex and remains subject to interpretation.
As the owner of a copyright, you have the right to reproduce your work or to create additional works based on your original piece. You have the sole right to present your work in public, and you can distribute your copyrighted material freely. Any unauthorized use of your work is a violation of your copyright.
Legal Requirements for Copyright
Copyright protection applies automatically to many creative works. However, the work must meet certain basic legal standards. Here are three of the most important requirements:
-
Original piece of work: Your work must be independently created and contain some creative expression.
-
Recorded: It must be recorded in a tangible form, such as writing, a file, a photograph, or a recording.
-
Copyrightable: It must protect an original expression. You cannot copyright an idea, fact, method, or system.
What Can be Copyrighted?
A copyright protects works of authorship in some fixed form, such as a book, chart, map, print, sculpture, painting, dramatic work, film, choreography, computer program, website, architecture, or sound recording. A copyright covers both published and unpublished works.
Unlike a trademark, which protects the owner against others using a confusingly similar mark, copyrights are limited to the exact piece of work or a close replica.
What Cannot Be Copyrighted?
• Ideas, concepts, methods, procedures, processes, principles, systems, or discoveries
• Works that are not fixed in a tangible form
• Titles, names, slogans, and phrases
• Symbols or designs
• Simple variations of lettering, typographic ornamentation, or coloring
• Basic listings of ingredients or contents
Works "made for hire" are an exception to the general rule for claiming copyright ownership. When a work is made for hire, the person or company that hired the individual is considered both the author and the copyright owner. A business can avoid authorship disagreements on work-for-hire projects by requiring the author to sign a non-disclosure agreement (NDA).
Get a Non-Disclosure Agreement
How To Apply for Copyright (Step-by-Step)
You need to register your work with the U.S. Copyright Office if you want to file a copyright infringement lawsuit.
Follow the steps below to successfully register your work.
1. Create your account
Create an account through the U.S. Copyright Office registration portal. Make sure to provide accurate details throughout the whole process.
2. Pay the filing fee
Choose the correct application that applies to your work and pay the required fee.
3. Submit a copy of the work
Upload or mail the required copy, known as the deposit. The Copyright Office will review your application. If approved, you will receive a registration certificate.
How to Apply for a Trademark (Step-by-Step)
To register a trademark in the U.S., you must apply through the United States Patent and Trademark Office. To do so, follow the steps below:
1. Search for existing trademarks
Search the USPTO trademark database for similar marks. Check marks used for related goods or services, not only exact matches.
2. File your application
Create a USPTO account and submit your application through Trademark Center. You must provide the relevant details and pay the required fee.
3. Monitor the application
A USPTO examining attorney will review your application. They may request corrections or refuse registration. If approved, your trademark will be published for opposition before it is officially registered.
What to Do in the Event of Infringement
If someone uses your copyrighted work or trademark without permission, there are certain courses of action you can take.
The table below explores some of the most common infringement scenarios and what you can do.
| Situation | What You Can Do |
|---|---|
| Your content appears on a website without permission | Send a DMCA takedown notice to the website or its hosting provider. Include the original work, the infringing URL, your contact details, required legal statements, and your signature. Registration is not required to send a notice. |
| Your work appears on social media or an online marketplace | Use the platform's copyright-reporting form. Provide direct links and proof that you own or represent the work. |
| Another business uses a similar name, logo, or slogan | Check whether the use could confuse customers about the source of the goods or services. Consider sending a cease-and-desist letter or consulting a trademark attorney. |
| Someone sells counterfeit products using your trademark | Report the listings to the marketplace and preserve evidence of the products, seller, and sales activity. Legal action may be appropriate for serious or repeated infringement. |
Key Takeaways
- Copyright protects original creative works, such as writing, music, software, and artwork.
- Trademarks protect your brand's identifiers. This can include names, logos, slogans, and symbols.
- Copyright usually begins automatically once you record an original work in a tangible form.
- A trademark must be distinctive. It cannot be too similar to an existing mark for related goods or services.
- You must register your copyright before filing an infringement lawsuit in the U.S.
You're probably accustomed to seeing the trademark symbols, ™ and ®, as well as the emblem, ©, which indicates a copyrighted work. But do you know what these designations really mean and when you need them for your business?
Knowing how and when to protect your brand can be challenging, but the decisions you make to register your intellectual property will ensure your business will stand out for years to come. In this article, you'll learn the differences between trademarks and copyrights and how to use these important legal protections.
Trademark vs Copyright: At a Glance
Although people often confuse the two terms, copyrights and trademarks are two different entities. In a broad sense, a copyright protects intellectual and creative works, while a trademark applies to names, logos, and phrases that identify your brand.
Here are some examples of the key differences between copyrights and trademarks.
| Feature | Copyright | Trademark |
|---|---|---|
| Purpose | Protects creators' rights over original works. | Protects brand identity and prevents consumer confusion. |
| Governing body | U.S. Copyright Office | U.S. Patent and Trademark Office |
| What it protects | Writing, music, artwork, software, films, architecture, and other creative works. | Business names, product names, logos, slogans, symbols, and other brand identifiers. |
| Duration | Generally, the author's lifetime plus 70 years. | Can last indefinitely if the mark remains in use and is properly renewed. |
| Cost | Registration fees vary depending on the application and work type. | Application and renewal fees vary depending on the filing method and number of trademark classes. |
What is a Trademark?
A trademark is a word, phrase, symbol, URL, or logo that identifies a product or service used to distinguish itself from competitors. Well-known trademark examples are McDonald's golden arches or Nike's "Just Do It."
Created by the U.S. Congress in 1946, trademark law is designed to protect both consumers and businesses from competitors who want to trick people into purchasing their product or service by capitalizing on an established brand name. When deciding on a trademark infringement, a court looks to whether or not a consumer is likely to be confused by the use of a competitor's symbol or brand.
Unlike copyrights, trademarks do not expire after a set period. As long as you continue to use the entity to represent your goods or services and renew your trademark at regular intervals, it belongs to your company forever.
Legal Requirements for a Trademark
A trademark must meet certain federal requirements before it can be registered with the U.S. Patent and Trademark Office. Here are 3 of the most important ones:
-
Distinctive: It must identify your goods or services and distinguish them from competitors.
-
Not confusing: It cannot be too similar to an existing trademark for related goods or services.
-
Valid filing basis: You must already use the mark in commerce or genuinely intend to use it.
What Can and Cannot be Trademarked?
Anything that distinguishes the goods or services of your company from a competitor in a commercial setting is eligible for a trademark. Examples include words and phrases, symbols, devices, and even colors.
What Cannot Be Trademarked?
• Proper names without consent • Generic terms or phrases • Government symbols • Vulgar, immoral, deceptive, or disparaging words or phrases • Likenesses of any U.S. President • Sounds (covered by copyrights)
When you own a trademark, you control the uses of that phrase or logo within your industry. For instance, if a trucking company uses the slogan "Just Do It," it would not be trademark infringement. Nike could only take another athletic apparel or equipment company to court because the unauthorized use of its trademark would be unlikely to cause confusion in this case.
What is a Copyright?
A copyright protects a wide range of original works, including literary, dramatic, musical, and artistic creations, such as poetry, songs, novels, plays, computer software, and architecture.
Unlike a trademark, a copyright does not last forever. Protection generally lasts for the life of the author, plus an additional 70 years. For works created anonymously or under a pseudonym, protection lasts 95 years from publication or 120 years from creation, whichever timeframe is shorter.
Although Article I Section 8 of the U.S. Constitution - known as the "Copyright Clause" - describes copyright protection, copyright law is complex and remains subject to interpretation.
As the owner of a copyright, you have the right to reproduce your work or to create additional works based on your original piece. You have the sole right to present your work in public, and you can distribute your copyrighted material freely. Any unauthorized use of your work is a violation of your copyright.
Legal Requirements for Copyright
Copyright protection applies automatically to many creative works. However, the work must meet certain basic legal standards. Here are three of the most important requirements:
-
Original piece of work: Your work must be independently created and contain some creative expression.
-
Recorded: It must be recorded in a tangible form, such as writing, a file, a photograph, or a recording.
-
Copyrightable: It must protect an original expression. You cannot copyright an idea, fact, method, or system.
What Can be Copyrighted?
A copyright protects works of authorship in some fixed form, such as a book, chart, map, print, sculpture, painting, dramatic work, film, choreography, computer program, website, architecture, or sound recording. A copyright covers both published and unpublished works.
Unlike a trademark, which protects the owner against others using a confusingly similar mark, copyrights are limited to the exact piece of work or a close replica.
What Cannot Be Copyrighted?
• Ideas, concepts, methods, procedures, processes, principles, systems, or discoveries
• Works that are not fixed in a tangible form
• Titles, names, slogans, and phrases
• Symbols or designs
• Simple variations of lettering, typographic ornamentation, or coloring
• Basic listings of ingredients or contents
Works "made for hire" are an exception to the general rule for claiming copyright ownership. When a work is made for hire, the person or company that hired the individual is considered both the author and the copyright owner. A business can avoid authorship disagreements on work-for-hire projects by requiring the author to sign a non-disclosure agreement (NDA).
Get a Non-Disclosure Agreement
How To Apply for Copyright (Step-by-Step)
You need to register your work with the U.S. Copyright Office if you want to file a copyright infringement lawsuit.
Follow the steps below to successfully register your work.
1. Create your account
Create an account through the U.S. Copyright Office registration portal. Make sure to provide accurate details throughout the whole process.
2. Pay the filing fee
Choose the correct application that applies to your work and pay the required fee.
3. Submit a copy of the work
Upload or mail the required copy, known as the deposit. The Copyright Office will review your application. If approved, you will receive a registration certificate.
How to Apply for a Trademark (Step-by-Step)
To register a trademark in the U.S., you must apply through the United States Patent and Trademark Office. To do so, follow the steps below:
1. Search for existing trademarks
Search the USPTO trademark database for similar marks. Check marks used for related goods or services, not only exact matches.
2. File your application
Create a USPTO account and submit your application through Trademark Center. You must provide the relevant details and pay the required fee.
3. Monitor the application
A USPTO examining attorney will review your application. They may request corrections or refuse registration. If approved, your trademark will be published for opposition before it is officially registered.
What to Do in the Event of Infringement
If someone uses your copyrighted work or trademark without permission, there are certain courses of action you can take.
The table below explores some of the most common infringement scenarios and what you can do.
| Situation | What You Can Do |
|---|---|
| Your content appears on a website without permission | Send a DMCA takedown notice to the website or its hosting provider. Include the original work, the infringing URL, your contact details, required legal statements, and your signature. Registration is not required to send a notice. |
| Your work appears on social media or an online marketplace | Use the platform's copyright-reporting form. Provide direct links and proof that you own or represent the work. |
| Another business uses a similar name, logo, or slogan | Check whether the use could confuse customers about the source of the goods or services. Consider sending a cease-and-desist letter or consulting a trademark attorney. |
| Someone sells counterfeit products using your trademark | Report the listings to the marketplace and preserve evidence of the products, seller, and sales activity. Legal action may be appropriate for serious or repeated infringement. |
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