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Trademarks versus Copyrights: Featured Article
Many people often tend to confuse copyrights and trademarks because they are not aware of what they are. But people also tend to confuse copyrights and trademarks because they have some things in common. One of the main things that they have in common is they are both used to protect intellectual property and they are both referred to as intellectual property protection. But what you really need to know is the differences between trademarks and copyrights because they are very different from one another and both of them serve different purposes. So in order to ensure that you apply for the right type of intellectual property protection you need to learn what each type is, what they cover and what the differences are between the two.
What is a Trademark?
The first thing that you need to know about trademarks is that they are also referred to as a servicemark. A trademark is a word, name, symbol or device that is used in trade with goods to indicate the source of goods. But the trademark is also used to help distinguish certain goods from others. So basically a trademark is something that allows goods or services to stand out from other goods and services, such as the logo for a company or a slogan for a product. A servicemark is pretty much the same thing as a trademark except that the servicemark identifies and distinguishes the source of a service rather than a product. In most cases the terms trademark and mark are used to refer to both trademarks and servicemarks.
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Something else that you need to know about trademarks is that trademark rights can be used to prevent other people from using a trademark that is similar to yours, referred to as a confusingly similar mark, but the trademark right cannot be used to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. What this means is that another company in the same line of work as you cannot take your trademark and make a few minor adjustments and use it as their own. The reason for this is that it can confuse the consumers into thinking they are doing business with your company when they are actually using another company. If you plan on using your trademark in interstate or foreign commerce you can and should register it with the Patent and Trademark Office so that others in various places cannot use a similar trademark.
Helpful Resources: 1. Copyright vs. Trademark vs. Patent This website talks about what the differences are between trademarks, copyrights and patents. You can also get information on what each of these items are according to the law. 2. Trademark vs. Copyright 3. Beginner Tip: Avoid Trademark Troubles 5. Trademark and copyright protection 6. Copyright vs. Trademarks 8. Perhaps Microsoft will sue Red Hat for trademark infringement (vs. copyright or patent) 9. Just Imagine: Short Break, But First: Trademark vs. Copyright 10. Copyright, Design Patent, and Trademark Issues |
What is a Copyright?
A copyright is a form of protection that is provided to the authors or creators of any original works of authorship. These works can include literary, dramatic, musical, artistic, and certain other intellectual works. But something you need to know about a copyright and the original works of authorship is that a copyright can be applied to both published and nonpublished works. The 1976 Copyright Act gives the owner of the copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. What laws apply to a specific copyright is going to depend on the type of work that has been copyrighted and keep in mind that more than one thing covered in the Copyright Act can apply to the copyrighted work.
But what you need to know about a copyright is that a copyright actually protects the form of expression rather than the subject matter of the writing. A perfect example of this is a description of a machine could be copyrighted but all this would do is to prevent other people from copying the description. This type of copyright would not prevent other people from writing a description of their own or from making and using the machine. All copyrights must be registered with the Copyright Office of the Library of Congress.
Here are some major differences between trademarks and copyrights.
Number one:
A trademark is actually used to protect words, phrases and logos that are used in federally regulated commerce. The purpose of using a trademark for federally regulated commerce is to help people and companies to identify the source of goods and/or services.
Number two:
A copyright is used to protect the works of authorship as fixed in a tangible form of expression. Basically what this means is that copyrights apply to items that are created by a person, but the item has to be a piece of original work and must be done in some kind of actual form of expression. So a copyright would actually cover the following items:
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- Works of art, 2 or 3 dimensional
- - Photos, pictures, graphic designs, drawings and other forms of images
- - Songs, music and sound recordings of all kinds
- - Books, manuscripts, publications and other written works
- - Plays, movies, shows, and other performance arts
Number three:
In some cases a copyright and a trademark will be wanted for the same business endeavor. But no matter what the case might be a copyright and a trademark are going to cover two different things. It is possible to get both types of protection, and in some cases it is actually needed, but in order to get both types of protection you are going to need to perform both types of registration, meaning you have to apply for both a copyright and a trademark. A perfect example of this is a marketing campaign for some kind of new product. In most cases the marketing campaign is going to introduce a new slogan for the new product, and of course the new slogan is going to appear in the advertisements that were created for the product. In this case you are going to want to apply for a trademark so that your slogan is protected. But you are also going to have to apply for a copyright so that you can protect the advertisements text and graphics.
Number four:
You need to keep in mind that in order to protect a title, slogan (see above example) or any other short word phrase you are going to need to apply for a trademark because copyrights do not protect these kinds of short word phrases. The same thing is going to apply for a trade name or a bare phrase.
Number five:
Another confusing thing is images because they can be protected by either a trademark or a copyright. But whether an image is going to be protected by a copyright or a trademark is going to depend on whether its use is intended to identify the source of goods or services. You also want to keep in mind the length of time that you are going to be using the image. The reason for this is that if an image is only going to be used temporarily in an ad campaign then it is not the type of thing that is going to be allowed to be protected by a trademark because it does not fit the description of a logo.
Number six:
The copyright law provides for compulsory licensing and royalty payments, with trademarks there is no analogous concept. Not to mention that the tests and the definition of infringement are completely different under copyright law and trademark law. What this means is that there are certain things you can do with trademarks and not be in violation of the law, but you cannot do the same thing with a copyright.
Number seven:
The registration process for a copyright and a trademark are completely different from each other. Here is how both processes work:
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- Copyright - the filing fee is small and the time to obtain the registration is actually pretty short. And the examination by the Copyright Office is limited to making sure that the registration application is filled out properly and completely and that you have attached suitable copies of the item you are trying to copyright. This process is pretty much an administrative process.
- - Trademark - the filing fee is quite a bit higher than the copyright fee and the time it takes to obtain the registration for the trademark is a lot longer. Not to mention that the examination by the Trademark Office includes a substantive review of potentially conflicting marks which are found to be confusingly similar, which means they have to look at all of the other trademarks to make sure that you did not partially steal somebody else's ideas. This process is pretty much an adversarial process.
Number eight:
Even though both of these are protected by the federal government and both of these items are forms of intellectual property protection they are not dealt with by the same office. There is a Copyright Office and a Trademark and Patent Office in the federal government and if you have questions about copyrights or trademarks you can contact the individual offices for further clarification.
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