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Trademarks vs. Copyrights: Which one is right for you?
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Nov 2009
Intellectual property can be a tricky field to understand, but navigating it properly can mean the difference between waging a vicious court battle to protect your legal interests and quietly enjoying the fruits of your creative labors.
Two of the most frequently confused intellectual property rights are copyrights and trademarks. So if you are in the business of creating unique goods for placement in the stream of commerce, it is essential that you understand the difference between the two.
Definitions of Copyrights and Trademarks
Copyrights and trademarks protect distinct creations. Generally Copyrights protect creative or intellectual works, and trademarks apply to commercial names, phrases and logos. Copyrights primarily protect the rights of people who create literary, dramatic, musical, artistic, and certain other intellectual works (like history tests, and software code). Trademarks protect the use of a company's name and its product names, its brand identity (like logos) and its slogans.
In fact, the two protections are so legally distinct that they are managed by two different offices within the federal government. Trademarks fall under the auspices of the U.S. Patent and Trademark Office, while Copyrights are granted by the U.S. Copyright Office.
Copyrights
Copyright protection is the more clear-cut of these two intellectual property protections. In the U.S., copyright protection is specifically outlined in our Constitution. In Article I Section 8 of the Constitution, commonly called the "Copyright clause," the founding fathers formally recognized a group of rights protecting authors and their many forms of original expression. If that sounds complicated, it is.
Despite their intentions to protect creative works, their words left a great deal of copyright law up to interpretation. Since then, courts and lawmakers have attempted to clearly define the laws on copyright protection. In addition, scholars have dedicated many years and countless volumes to unraveling the complex web that has developed over the years.
Copyright Basics
Fortunately, a few basic building blocks form most of the foundation of the actionable information a person needs to understand his basic rights under copyright.
Rights. Copyright protection means that the copyright holder of the work retains exclusive rights to print, display, distribute and perform the work. In addition, the holder has exclusive rights to publish and transmit the work on the Internet.
Creation. In order to warrant Copyright protection, a work must be an original.
Tangible medium. A copyrighted work must be "fixed in a tangible medium of expression." While that may sound technical, its important to understand. Basically, the work must be established in some fixed form, such as a book, map, chart, print, dramatic work, sculpture, film, sound recording, or computer program.
Duration. Copyright lasts for the life of the author or creator of the material, plus seventy years and now extends to performance, display, and web transmission of the work in question.
Trademarks
Created by Congress in 1946, the legal protections of trademarks are much newer than copyrights. Although commonly viewed as protection for companies and their commercial interests, at the time they were legislated, trademarks were seen as a protection for consumers as well.
Trademarks were born, in part, out of a notion that consumers should be protected from confusion when seeking goods in the marketplace. Because the mark, or brand of a product becomes known to consumers, the use of that mark or symbol on a product that does not come from the original producer would mislead consumers.
In order to protect the interests of the buyer, trademark prohibits the use of a known mark or brand by a person other than the trademark holder. In order to establish the boundaries of trademark protection, a court looks to whether or not a consumer is likely to be confused by the use of the brand or symbol.
Trademark Application and Review
The trademark registration process is thorough. U.S. Patent and Trademark attorneys are known to scrutinize applications closely. Aside from ensuring that an application includes the necessary supporting materials, an examining attorney determines if the proposed mark conflicts with current trademarks. If it is too similiar to other marks, the application is either returned to the applicant with requested changes and revisions, or rejected.
Consequently, for many people considering a trademark application, a trademark search is a wise investment. Searches ensure that a proposed trademark is sufficiently unique when compared to ther federally approved trademarks. In fact, a thorough search can extend beyond the federal trademark database to include all 50 states, Canada, Europe, DBA filings and more.
A Gray Area
One overlapping area of law and precedent between copyrights and trademarks involve short words and phrases. These phrases are generally thought of as pertaining to trademarks, but they can be copyrightable. When courts and the United States patent and trademark office, are convinced that the items demonstrate sufficient creativity and originality, Copyright protection is granted.
Copyright and trademark are both important protections and, when understood properly, can be used to effectively protect products and artistic creations. Knowing the scope of your rights and the ways intellectual property protections work can help you make the most of your work and can prevent costly and trying legal battles.
Most Viewed in Copyrights
Comments
Submitted by on Feb 23, 2010 - 1:35AM
How can you get protection for the name of story you have written. For example if its written story has the name for a movie.
Submitted by on Mar 24, 2010 - 9:02AM
Titles of things like books, movies or songs can only be protected if there was a series. ex.(Harry Potter) If someone has only used the name one time it cannot be protected. If you have a desire to protect a name in reference to a product or service, that falls into the realm of trademarking.
Submitted by on Apr 27, 2010 - 6:32PM
If you are an author and have written an original work, and the title is your own original title; then you are protected under copyright law. If your title contains a variation of an existing title, then you enter into an area of copyright infringement; and the owner of the original copyright can choose to seek a judgment against you in civil court, especially if it is covered by trademark as well as copyright. Most movies are covered under trademark to protect the interest of the production/film corporation that funded the movie. But unless you give away, or sell your copyright, the original author retains all rights of their own creative work. I hope this is helpful, have a blessed day!
Submitted by on Feb 25, 2010 - 8:53AM
Can I get a Trademark
I recently started an LLC with you for:
RLG&T Insurance Counseling Service LLC.
Question:
1) Do I have to include 'LLC' if I trademark:
'RLG&T Insurance Counseling Service
The Insurance Professionals'
2) I have a Trademark or patent pending with LegalZoom, can you reopen and proceed with a Trademark for #1 as is, or add the LLC if necessary?
Thanks for your help
Tom Henley
Submitted by on Mar 24, 2010 - 9:22AM
1. Normally common terms like LLC,INC,DBA,.com & etc... don't have a need to be added because they can't be owned by one person. But if your desire is to use that persistantly on everything then it is fine to add it to the trademark, because you will be protected for exactly what you file for.
2.If you have canceled order it cannot be reopened. You can only reorder at this time. If the order is simply on hold then you would be able to pick up where you left off.
Submitted by on Mar 2, 2010 - 12:37PM
Is it necessary; or am I required to file for copyright protection for numerous lyrics written over a period of years?
In other words; these lyrics are all still in need of music, but they are complete on their own.
Can someone advise me as to what I should do next?
I have had writing work published for newspapers during 1992- 1993 and again from 2000- 2002, but those writings are all owned by the publishers of each paper, correct?
How do I protect writing I am doing that is not directly for the benefit of an amployer? It is for my benefit.
Thank You,
Francis McEvoy
Submitted by on Mar 24, 2010 - 9:43AM
Technically you have the copyright the moment you finish the work, it lasts the life of the artist plus 70 years. But the only way to have government support for that is to file a copyright. As far as the amount, you can file an unlimited amount of work under one registration. But once you file if you have any new work or update the old work you would have to file again to cover the changes.
The ownership of the published items would be based on the agreement you have with them. For a more specific answer you should check with an attorney.
To protect any of you creative works you would copyright and if needed also patent.
Submitted by on Apr 27, 2010 - 6:40PM
When you allowed them to publish your articles; whatever they may be, you signed a release form that should have read that you retain all copyrights to the article, but you have granted permission to them for use in their publication. You should still all creative copyrights to your original works; unless you sold your rights. And if you kept all of the paper work, then you even have verification that you are the copyright holder. If you no longer have that documentation, perhaps the publication could provide you with an archive copy of the original documentation. I hope this has provided some clarification, have a blessed day.
*hint: Always read the contract before you sign it.
Submitted by on Mar 24, 2010 - 10:05PM
HOW DO I GO ABOUT GETTING A TV SHOW IDEA PROTECTED? DO I NEED TO GO THROUGH A SPECIALIZED ATTORNEY FOR INTELLECTUAL PROPERTY?
THANKS.
Submitted by on Apr 27, 2010 - 3:33PM
I am the legal representative for all of the Americas and Caribbean for a company that is registered in the European Union. Using my company I registered the trademark of the EU company (product, name and logo)in Mexico. I want to do the same thing in The USA. Can I do it or does the EU company has to do it?
Thanks.
Submitted by on May 7, 2010 - 12:52PM
Trademarks should be registered under the owner’s name, whether an individual or company. The person filing and signing the trademark application would need to be an appropriate representative, such as (1) a person with legal authority to bind the applicant; or (2) a person with firsthand knowledge of the facts and actual or implied authority to act on behalf of the applicant; or (3) an attorney who has an actual or implied written or verbal power of attorney from the applicant
Submitted by on Apr 27, 2010 - 3:35PM
I have a band and we're about to start playing in public.Do I need to trademark my band name? What's the best way to protect it? I also write all the music and was wondering what to do to protect my songs, any help on this would be greatly appreciated. Thank you
Randy
Submitted by on May 7, 2010 - 12:54PM
A band name may function as a service mark for entertainment services in the nature of performances by a musical group if it is used to identify and distinguish the service of providing live performances, or as a trademark for a series of musical recordings. You can visit http://tess2.uspto.gov/netahtml/tidm.html to view a list of the USPTO’s acceptable goods and services descriptions.
Copyrights provide ownership rights to original works of authorship. Original works such as music, lyrics, and sound recordings can be registered with the Copyright Office.
Submitted by on Apr 27, 2010 - 3:37PM
I have designed a logo for the Dental office where I work. It is currently being used in our ads, our apparel, our internet web site, etc. Which would be better for me to secure? A copyright? or a trademark, and why.
thank you
Submitted by on May 7, 2010 - 12:55PM
A Trademark protects names, terms or symbols that are used to identify the products of a certain manufacturer or company. This includes brand names such as "Coca-Cola" and images such as Nike's famous "swoosh." As a trademark owner, you can sue for trademark infringement in federal court and prevent others from importing foreign goods that display your trademark. A Copyright protects original creative works such as books, movies, songs, paintings, photographs, websites and choreography. As a copyright owner, you can control how your work is reproduced, distributed and presented publicly. To read more, please visit http://www.legalzoom.com/trademarks-patents-copyrights/summary-compare-t...
Submitted by on Apr 29, 2010 - 7:33AM
I have recieved the letter advising that the US Copyright office has recieved may material, and that it is registered the day they recieved it.
Currently a writer for a local newspaper is usung the title of my work for a weekly column. Do I have to wait the 15 months until my certificate is issued to impose my rights in this situation ?
Submitted by on Apr 29, 2010 - 11:40AM
To clarify, the title of a work is not in fact copyrightable, and therefore, the title of your work is not included in the scope of registration for the work you submitted to the Copyright Office. You may want to look into registering the title of your work as a Trademark with the US Patents and Trademarks Office, a service LegalZoom also provides.
Submitted by on Apr 29, 2010 - 8:47AM
How do I get a trademark and logo international like nike or coca cola without anyone copying in a foreign country?
Submitted by on Apr 29, 2010 - 6:14PM
I have a product that has been manufactured for me.What do I need to do to put my trademark on it!
thank you
Garry Levine
Submitted by on May 7, 2010 - 12:58PM
Registering a trademark helps you to secure the benefits of trademark protection, such as an official notice of your claim to the mark, evidence of ownership, the ability to invoke federal court jurisdiction, a basis for obtaining registration in foreign countries and preventing the importation of infringing foreign goods. Once registered you can include the ® next to your trademark as notice of your ownership and registration.
Submitted by on May 7, 2010 - 12:57PM
You can file an international application through the United States Patent and Trademark Office. The Madrid Protocol is an international treaty that allows a trademark owner to seek registration in any of the countries that have joined the Madrid Protocol by filing a single application, called an “international application”. For more information, please visit http://www.uspto.gov/trademarks/law/madrid/madridfaqs.jsp
Submitted by on May 2, 2010 - 11:13AM
In 2005 I gave a Worship and Praise Dance Awards. I presented 3 awards, 1st place. 2nd and third place for a dance competition. I have been doing this until now. A business that has money and pull started doing it in 2007. In 2006 I helped them to get patrons for there Church Bulletin. They were suppose to cover my program, but they left out the part about the dance competition.I didn't have a good turnout for the competition, but the awards for those who help the displaced and distressed went well, which is parts of the awards, The Gospel Homage Award of Honor. In 2007 they started doing Worship and Praise Dance Awards. The same month I was giving mine. I changed my months from June to September. A lot of churches here had dance competitions after I did. I changed my dance awards name to Homage Obeisance Awards in 2009. Can I still get rights to my starting the dance competitions?
Submitted by on May 7, 2010 - 12:59PM
Trademarks may protect names or logos used to provide services such as competitions and award programs. Neither copyrights nor trademarks can protect general concepts. For example, there may be several soccer competitions but only one FIFA World Cup.
Submitted by on May 3, 2010 - 10:34AM
If a person writes a software program and shares it with others through the internet with the comment that it may not be used for commercial purposes or for sale, but the software program IS NOT protected by a copyright, can another person register a copyright on the unique software program? If yes, does this prevent the person that created the program from sharing the program through the internet and any other media?
Submitted by on May 3, 2010 - 2:37PM
The specifics of this particular situation can only thoroughly be addressed by an intellectual property attorney. However, to clarify a few points, a work, such as an original software program, is automatically copyrighted, and that copyright belongs to the creator of the work, unless they transfer ownership of their rights to the work to another individual or entity. While copyright is an inherent part of the work, that does not mean it is automatically registered with the Copyright Office. That requires an application with the Copyright Office and their approval of the application.
Unless copyright ownership has been transferred to them, someone who did not create a copyrightable work cannot claim ownership of the work, or register as the owner of that copyright, with the Copyright Office.
Submitted by on May 24, 2010 - 6:01PM
Can you help me without too much legalese?
I started to do a trademark with you, but I did not get any help with what I should do.
Let me make this real simple....
There is a phrase called COEXIST and it is widely used in many places and formats like bumper stickers, t-shirts I have even have seen it in lights at a concert. What should have the originator of this LOGO/Design done to protect this image? I understand the logo/design has never been trademarked or copywritten and anyone can use it.
Your response to this question will answer my questions because I have something very similiar. thank you.
Please don't say it depends...use the COEXIST as a case example... thanks again.
Kyle Theriault
Submitted by on May 25, 2010 - 11:32AM
Copyrights will not protect names, short phrases, or familiar symbols and designs. If the COEXIST logo falls into these categories, it may not be copyrightable.
Trademarks as ornamental designs, such as most t-shirt or sticker designs, are generally not registrable. Trademarks are commonly used to identify specific products or services, like a brand name or company logo. If the owner of COEXIST is interested in registering a trademark, s/he must list the associated products being sold. Depending on the types and range of products listed, additional filing fees may apply.
Submitted by on May 29, 2010 - 6:03AM
I would like to start selling a homemade product from my
home, for right now. Soap. I have a name and a label for my product. What do I need to do now to get started? I want to do everything legal, even tho I am just beginning? Any help would be appreciated!
Submitted by on Jun 4, 2010 - 5:03PM
If I apply for a trademark through legal zoom and the trademark office turns down the application, can I try another one, or do I pay another fee to legal zoom?
When the trademark office examines my application, do they refer to thier own database for similar entries, or are thier other sources that they search as well? do you know what these other sources are?
regards,
Jim Watson
Submitted by on Jun 16, 2010 - 5:34PM
Q: If I apply for a trademark through legal zoom and the trademark office turns down the application, can I try another one, or do I pay another fee to legal zoom?
A: If the USPTO issues a refusal, you will have the opportunity to petition the refusal directly with the USPTO. If the petition is denied, you will need to start the trademark process from the beginning. Please visit our Trademark Education Center at http://www.legalzoom.com/trademarks-guide/trademarks-service-mark-defini... to view Grounds for Refusal of a Trademark.
Q: When the trademark office examines my application, do they refer to thier own database for similar entries, or are thier other sources that they search as well? do you know what these other sources are?
A: The USPTO will conduct a search on the federal database for similar marks. You may conduct a search free of charge on the USPTO website using the Trademark Electronic Search System (TESS) at http://tess2.uspto.gov/bin/gate.exe?f=login&p_lang=English&p_d=trmk .
Submitted by on Aug 22, 2010 - 7:54PM
Do I have to submitt each original song separately, or can I send them all at once for one fee.I have about 30 songs I want to copyright and I have them on 2 c.d.s
Submitted by on Sep 24, 2010 - 11:45AM
Q.If I purchase a copyrighted picture of a political candidate or athlete, for my use from a photographer, can I use it for a T-shirt, bumper sticker and card, even if the politician may not want me to?
Q. What are the advantages of having a trademark on a phrase vs a copyright on an artistically rendered lettering on a t-shirt, bumper sticker or card?
Submitted by on Sep 29, 2010 - 12:25PM
How would a Church/Religious organization list/file the logo name, if no items were being sold, just as a logo/title with of course church services...how would a person list that under a trademark? Thanks Cj
Submitted by on Sep 30, 2010 - 10:44AM
Hi CJ,
Trademarks are not only used to represent goods. They can also be used to represent services, such as “spiritual counseling” or “ministerial services.” Such marks can also be referred to as service marks.
Thanks for your inquiry,
LegalZoom Staff
Submitted by on Nov 12, 2010 - 11:48AM
Does Legal Zoom provide trademark services for the European Union?
Thanks.
Submitted by on Nov 18, 2010 - 6:10PM
The Madrid Protocol is an international treaty that allows a trademark owner to seek registration in any of the countries that have joined the Madrid Protocol by filing a single application, called an "international application." The resulting "international registration" serves as a means for seeking protection in member countries, each of which apply their own rules and laws to determine whether or not the mark may be protected in their jurisdiction. To get more information about the Madrid Protocol, please visit http://www.uspto.gov/trademarks/law/madrid/index.jsp
At this time, LegalZoom does not provide International Trademark filing services.
Submitted by on Nov 18, 2010 - 9:46AM
We are developing some phrases/slogans and graphics to be used on t-shirts and bumper stickers in something of a niche market. From what I have read in the Q&A on this website, it seems the phrases/slogans are not copyright-able, nor are the graphics able to be trademarked. Can you please confirm or provide further guidance?
Thanks and Kind Regards
Submitted by on Nov 19, 2010 - 11:49AM
Dear Reader,
Copyrights will not protect names, short phrases, or familiar symbols and designs.
Trademarks as ornamental designs, such as most t-shirt or sticker designs, are generally not registrable. Trademarks are commonly used to identify specific products or services, like a brand name or company logo. If you are interested in registering a trademark, you must list the associated products being sold. Depending on the types and range of products listed, additional filing fees may apply.
Submitted by on Jan 14, 2011 - 9:00AM
Another IP question;
Stated in a way to get the information needed without giving the exact idea... What form of protection will I need. If one wants to create a unique greeting card that combines other elemints like a gift card, a collectable, memorabillia, and information on the card like one would see on a sports trading card. Can the combination of unique placement of art and information on a card be protected and how.
Submitted by on Jan 18, 2011 - 12:10PM
To The Roseboro Group,
LegalZoom cannot advise you on whether your particular item is likely to receive protection or which type of protection is right for you and your work. For information on your rights and the various forms of intellectual property protection, you should consult with the relevant government websites (www.copyright.gov and www.uspto.gov cover the major forms of intellectual property) or with a licensed intellectual property attorney. If you would like LegalZoom to connect you with such an attorney, please visit http://attorneyconnect.legalzoom.com
Submitted by on Jun 7, 2011 - 9:40AM
My son, a very creative young artist with many goals in mind, has created various movies with his own original characters, story and he also has a trademark and wants to show his movie publicly. He's trying to find out how to protect his work and trademark. He has copyrighted the main character about 5years ago but has much more work done ever since. Suggestions to help him out will be appreciated.
Submitted by on Mar 18, 2012 - 9:17AM
Hey, I'm working with a clothing line and I have been for about almost a year and I have been submitting designs for the clothing line and they have been printing them however I'm not receiving much for them and they are selling like crazy. I have a new set of designs that the clothing line wants to start printing but this time around I want to have a contract agreement involved to cover my back. My question is what kind of contract would be good for me in this situation and is it too late to cover some of the previous designs? I mean at the end of the day I created them.
Submitted by on May 9, 2012 - 12:54PM
Hi and thank you for contacting LegalZoom! We would love to be able to help you! please feel free to give our Business Formations department a call for further information at (888) 381-8758 or e-mail us at bizsales@legalzoom.com. Also feel free to visit our Business Advantage Pro site at https://www.legalzoom.com/attorneys-lawyers/legal-plans/business.html if you would like to speak to a licensed attorney in your state regarding your clothing line.
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