Trademarks vs. Copyrights: Which one is right for you?

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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.