Trademark vs Copyright: Which Protection Do I Need 2021
Protecting a business is the main reason for choosing intellectual property protection. In addition to protecting your company from infringement by third parties, it is counted as an asset and can be treated as collateral for a loan. If you don’t protect your intellectual property by applying for applicable registration or conducting the necessary searches, your company may be at great risk of infringement.
While there are only four different types of intellectual property to choose from, many people still find it hard to decide on the right one for their business. That is why we have decided to compare the most confusing, trademark vs copyright. Let’s begin by learning the difference between copyright and trademark right from their meanings.
What is a trademark?
A trademark is basically a word, a phrase, a symbol, a design, or their combination used to identify and distinguish the source of goods and/or services. It is protected by law that prevents other entrepreneurs from using a similar mark that may bring confusion as to the source of origin of the goods or services. Servicemark is the same as a trademark, while a trademark protects a specific product, a service mark does the same task as a service.
There are two types of trademarks:
Registered trademark: Registered trademarks enjoy much broader protections by the law than unregistered. The source of registered trademark protection at the federal level is the Lanham Act regulated by the United States Patent and Trademark Office (USPTO).
Unregistered Trademark: Trademarks that are unregistered with the USPTO are limited to territory but are protected under state legal.
What is a copyright?
Copyright is a type of intellectual property used to protect original works of authorship. These include the original expression of ideas, such as story sculpture, song, painting, as well as architectural plan among others.
Copyright is protected by the U.S. Copyright Law]. Even though copyright registration comes with many benefits, it is not a must you register for copyright protection to be protected by law. Once your original work exists in a copy of a phonorecord or is published, it is protected.
Differences Between Copyright and Trademark
Now that you have the basic understanding of the difference between copyright and trademark in terms of their meaning, let’s learn the difference between them in other aspects.
Trademarks protect your intellectual property by protecting details such as names, symbols, lyrics, catchphrases, figures, logos and slogans.
Copyright protects creative work including, articles, fabric works, sculpture, book, poems, photographs, dances, play, musical composition, computer software, industrial design, television, and radio broadcast.
What’s NOT Protected?
Generally, trademarks that do not possess a distinctive character to differentiate your goods and services from others cannot be trademarked. These may include:
- A person’s surname particularly if it is a common name
- A word that is descriptive of quality of services such as “perfect” since everyone is entitled to using such words
- Trademarks that are misleadingly similar to the ones already in use.
- Names that are protected such as “Olympic.”
- Work that is not fixed in some tangible form.
- Titles, short phrases, slogans, and names.
- Ideas, systems, processes, procedures, principles, methods, discoveries, or devices.
- Familiar symbols or design, coloring, or topographic variation
- Work that is in the public domain, for instance, measurement conversion or historical facts.
Copyright does not protect ideas, facts or concepts but rather protect their expression. For example, you can both cover a novel with a similar topic without violating each other’s copyright as long as you have a unique approach, angle, writing style and more.
Other works not protected by copyright include method, system, recipe, names, title, short phrases, typeface, font and lettering, layout, and design.
Requirements to be protected
In order for marks to be registrable, they must meet some requirements. The main requirement for a mark to qualify for protection is that it must be distinctive and must be used in commerce.
Put simply, it needs to be distinctive in that it should be capable of identifying the producer of a particular product or service. Besides, given that trademark law is constitutionally responsible for regulating interstate commerce, the mark must be used in commerce.
Three elements will be required for copyright protection:
Fixation: A creative idea must be fixed in some media. For example, you can protect a song by writing it on paper or record it onto a tape or a CD because performance won’t be protected.
Expression: Ideas can’t be copyrighted but how they are expressed can be copyrighted.
Originality: The work has to reach some level of originality to be considered the product of an author.
Term of Protection
A trademark in the US can potentially enjoy protection for life as long as the owner continues to use it. However, it has to be renewed. Though, renewal period may differ depending on the territory where the trademark is held, in most cases it is done after 10 years.
In the US, all works published before 1924 are in the public domain. Work published afterward (after 1923) but prior to 1978 enjoyed copyright protection for 95 years from the day of publication. For the work created after the 1st of January 1978, the copyright lasts as long as the author lives plus additional 70 years.
Trademarks give you the right to use the mark and to prevent others from deceptively using a similar mark in such a way that may bring about confusion concerning the origin of the mark.
Copyrights grant the author of the work the following rights:
- Right to reproduce
- Right to adapt
- Right to publish
- Right to perform
- Right to display copyright work.
What Makes a Good Trademark?
Trademarks can be classified into four types in order to understand what makes a good trademark: Fanciful and arbitrary marks, suggestive marks, descriptive marks, and generic marks. Of these four forms of marks, arbitrary and fanciful marks make the best trademarks.
Arbitrary marks are words with known meanings that are not associated with the goods protected, example Apple makes computers. On the other hand, fanciful marks are made up of words that have no dictionary meanings, for example Kodak.
How to Register a Copyright
Even though copyright registration is not mandatory, the protection is so hard to enforce without registration. You can work with your attorney to help you file an application with the copyright office.
You will be required to submit a copy of the work to be registered to register to the copyright office either electronically or via email. It is prudent to add a copyright notice to the copy of the work to help deter others from using work without your permission. The notice can have:
- A copyright symbol
- The name of the copyright owner
- The year of publication
How to Register a Trademark
Trademark registration can be done in two ways:
Online: Trademark Electronic Application System (TEAS) involves applying for a trademark by visiting the United States Patent and Trademark Office Website.
Paper: The United States Patent and Trademark Office also gives a paper option for entrepreneurs who don’t have access to the internet or just fancy paperwork.
Whichever method you choose, the application process is very simple. All you need to do is to choose what your mark would be, decide on the format and conduct a thorough name search to ensure your mark is not already in use. You have the option to seek the help of an intellectual property law firm or online registration services if you want it done right.
Once you have filled the necessary application form, the United States Patent and Trademark Office will sign an attorney to examine you on their behalf.
Trademark vs. Copyright: Which One to Choose?
In a nutshell, trademarks protect your brand names, logos and slogans authenticity while copyright protects ownership of original works of the author. Therefore, the unique mark is all about avoiding confusion in the market by protecting the use of brand identities such as logos, brand names, and brand slogans. However, you will need copyright to prevent copying of how ideas and facts are expressed.
Whether you are starting a business or already set up one, our copyright vs trademark comparison is enough to help you make an informed decision. In essence, the use of copyrights and trademarks will depend on your business needs. You can seek the help of an attorney or online registration services for more information.
Frequently Asked Questions
Unregistered trademarks are protected under state law. However, your right is limited to the geographical area where you operate and that makes trademark registration with the USPTO the best option if you want to protect your intellectual property.
Both trademark and copyright protect a logo in a way. Copyrights protect the artistic aspect of your logo while trademarks protect the font, the design and other details. In most logos, your work of art has to be copyrighted while the design of the logo has to be trademarked.
You can trademark a phrase if you can demonstrate a phrase has acquired a distinctive meaning from its original meaning. The new meaning must identify the phrase with particular goods and services.
Trademarks protect the use of the business name, and its product names, brand identity and slogans. Copyright on the other hand protects literary, musical, artistic among others. Therefore you should trademark your business name.
Nike holds three separate trademarks for its name, symbols, and slogan. For example, the name Nike has been trademarked, and the Nike swoosh symbol, and the phrase “Just do it” has been trademarked as well.
The design of the phone or Mac is copyrighted but the Apple logo, colors, fonts, and other forms of marks in the same line are trademarked.
A business can sue for infringement or dilution when the brand value is being watered down by a third party’s use of the mark. Therefore, your trademarks and copyrights are well protected from third-party use.