A common point of confusion for our publishing clients is trademark vs copyright. Most people seem to know that patents, another type of intellectual property (IP), cover inventions, but most do not know what protections are afforded by copyright and trademark. Both trademarks and copyrighted works are IP assets that are offered protection in the U.S. Constitution, but they differ significantly. Let’s look at the differences between trademark vs copyright, determine when protection is given under each law, and talk about obtaining the proper protection for these important intellectual property assets.
What does copyright law protect?
U.S. copyright law protects works of authorship like the following: books, songs, paintings, photographs, web content, movies, and some figures, tables, and maps where criteria of uniqueness and originality are met.
Criteria for Copyright Protection
United States Copyright Office Circular 34 indicates that “To be protected by copyright, a work must contain a certain minimum amount of authorship in the form of original literary, musical, pictorial, or graphic expression. Names, titles, and other short phrases do not meet these requirements.”
What can’t copyright law protect?
Circular 34 also indicates that “The U.S. Copyright Office cannot register claims for brief combinations of words such as:
- Names of products or services
- Names of businesses, organizations, or groups (including the names of performing groups)
- Pseudonyms of individuals (including pen or stage names)
- Titles of works
- Catchwords, catchphrases, mottoes, slogans, or short advertising expressions
- Listings of ingredients, as in recipes, labels, or formulas. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable.”
How do I get copyright protection for my works?
A display of the © copyright symbol isn’t required for protection of works created after March 1, 1989. A work published since that time without the © symbol still is protected by U.S. copyright law.
It is a good idea to include a copyright statement, however. A copyright statement may alleviate any confusion as to the ownership of the work, and it may deter some would-be copiers from publishing your copyrighted works without permission.
Copyright protection is automatic today. From the moment a work is created in a tangible form (as long as it meets the criteria of uniqueness and originality), it has copyright protection. That is from the moment content that meets the above criteria is saved on a computer, captured by writing down, or drawing on a piece of paper, it has protection. You do not have to register your copyright with the federal government to claim legal ownership of your work.
It is wise to federally register works, however. Before you can sue for copyright infringement of your work, you must register your copyright with the federal government. Also, to collect the greatest amount in damages if you are successful in an infringement case, you must have registered the work with the U.S. Copyright Office within three months of publication. (See one of our blogs for more details.) The cost to register a copyright is minimal, but the length of time it takes to receive your notice of registration can be eighteen months or more. Make sure you register your work as soon as it is published in order to get the maximum protection under the law.
What is a trademark and what does trademark law protect?
A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of goods or services of one party from those of others.
Trademark law protects brand names like Coca-Cola and Wonder Bread, images like the NBC peacock and the Nike swoosh, and taglines like Nike’s Just Do It, Wendy’s Where’s the Beef, and Allstate’s You’re in Good Hands.
Often our clients mistakenly think that their logos are protected under copyright. It is a good idea to register a trademark for important logos instead of counting on copyright protection to save them from theft.
The quote below from Circular 34 of the U.S. Copyright Office makes it apparent that assuming that copyright will protect an important logo is a bad practice.
“The federal trademark statute covers trademarks and service marks—words, phrases, symbols, or designs that distinguish the goods or services of one party from those of another. The Copyright Office has no role in these matters.”
Sometimes a logo may be found to have copyright protection in a court of law. However, logos may not always meet the criteria needed to be recognized by the courts as copyright protected or by the U.S. Copyright Office as eligible for copyright registration.
The art in a logo must pass certain criteria to be recognized as copyrightable. To be copyright protected, works must be fixed in a tangible form, be unique, and must have a certain level of originality determined by the U.S. Copyright Office and/or in a court of law. Many logos, although certainly fixed in tangible forms, would not meet the other criteria for copyright protection. The simplicity often evidenced in really successful logos like the Nike swoosh or the Target circles within circles, may disallow any claim to the level of originality and uniqueness needed for copyright protection.
How do I protect my trademarks?
Federal trademark law, unlike copyright law, does not give to creations automatic protection by virtue of being created in a tangible form. State trademark laws can provide some protection if a logo is registered with a state in association with a business that is registered in that state, but the protection is limited to that state.
Typically the “TM” symbol is carried on the logo to give notice of a claim of common-law rights in a creation. A TM symbol usually is used in connection with an unregistered mark, to inform potential infringers that a term, slogan, logo, or other ownership indicator is being claimed as a trademark. Many use the TM symbol to indicate that they are in the process of registering their mark with the federal government. It is not a given that the TM symbol will protect the work, but displaying it on your work may discourage others from stealing it.
More about trademark vs copyright
A federal trademark is registered under one or more of 45 international classes of use. These can be found at the U.S. Patent and Trademark Office website. Proof of interstate commerce is required to federally register a trademark. A trademark for a product for which commerce is conducted solely within one state would not qualify for federal trademark registration.
Let’s use our company as an example of trademark vs copyright.
Our company Integrated Writer Services, LLC is a legal liability corporation registered in the State of Colorado. We obtained the domain “TheCopyrightDetective.com” and started using it in 2011 in interstate commerce to market our services and sell goods, namely our published works. The website and all its content is protected under copyright laws.
The first steps in the pursuit of a federal trademark came when we registered the term “Copyright Detective” in Colorado as a trade name for the company, and “The Copyright Detective” was registered with the Colorado Secretary of State as a trademark in two classes of goods and services. We displayed a “TM” after the words The Copyright Detective™ on the header of the website and elsewhere until we received federal trademark protection. Then we started to display the ® symbol.
The circled “R” symbol means that the U.S. Patent and Trademark Office has acknowledged that the mark has been used in interstate commerce for one or more of several classes of goods and/or services. The process of filing for a federal trademark is rather complex. And the least expensive fee per class of goods/services is currently $275 each. Because of the complexity of the process and the required documentation, attorneys who specialize in trademark law are frequently engaged to file for trademark registration.
Our company filed the phrase “The Copyright Detective” in four international classes 009 and 016 for goods and classes 041 and 045 for services. After 11 months the application was approved as a “Standard Character Mark” without claim to any particular font style, size, or color.
Protect Your Assets
The self education and the education of your staff on the laws and processes related to trademark vs copyright ownership is your best protection of a very important asset– your intellectual property.
Want More About Copyright Law?
Order your copy of Copyright Clearance for Creatives for a basic overview of copyright law and essential guidelines on when, how, and where to get permission to use copyright content in your works.