Knowing the difference between the terms can help you protect your business.
We’ve all heard the terms “trademarks” and “copyrights” a million times. But what do they actually mean?
Trademarks and copyrights are two of the three types of “intellectual property” (the third is patents). They may seem similar, but they cover two totally different aspects of owning your unique creative work (aka your intellectual property).
What Is a Trademark?
A trademark is a word, phrase, symbol, logo or design (or combination of any of those) used to distinguish the source of goods or products from one company/person from those of someone else. Think of trademarks as protecting your overall brand.
Trademarks are used to protect the trademark owner from someone else using a name, symbol, logo, etc. that is so similar that it could cause confusion. Basically, if everyone could use the Starbucks logo and brand name, it would cause a lot of confusion over authenticity, right? So, trademark law protects against potential confusion or fraud.
You know about trademarks from seeing two main types of symbols–™ or ®–after a name or logo. These two symbols mean different things.
The ™ symbol means that a person or company is claiming they own the rights to that particular trademark. By “claiming” to own the mark, that person or company is telling the world they believe they are the originator of the brand name or logo. You can use this symbol to establish what is called a “common law” right to the trademarked name, just by using the name in commerce.
Anyone can use the ™ without formally registering the trademark. You can use the ™ to put others on notice that you believe you are the owner of this mark. You should first do a quick search of trademark names to make sure no one else is already using it. Throwing up the ™ symbol after your name or logo isn’t a bulletproof protection. You’re just saying that you think you’re the real trademark owner.
But if Starbucks comes knocking on your door, you’re probably going to lose. On the other hand, if you’re using the ™ symbol for three years and someone else started using the name one year ago, the fact that you were using it for longer could be good evidence that you’re the “real” owner.
The ® symbol designates a registered trademark. In the U.S., trademarks are regulated by the United States Patent and Trademark Office. Someone who is using the ® symbol went through the formal process of applying for a federally registered trademark. You can only use this mark once you’ve been granted the trademark.
Even though you have some protections with just the ™ mark, with a federally registered trademark, you have greater protections. Basically, if there is ever a fight with someone else over your mark, you would have greater legal protections if your mark is registered.
Applying for a Trademark
If you are interested in applying for a trademark, check out the U.S. Patent and Trademark Office for more information on procedures and fees. Your chosen trademark will have to meet several criteria for the trademark to be granted. The formal trademark process can be lengthy and complicated, so it is a good idea to consult with an attorney to help you with the process.
If you are using a name you feel is at risk for being copied or stolen, you can start using the ™ symbol today. Doing so will put others on notice that you are claiming ownership over the name (or logo, symbol, etc.). You can always register later for a formal trademark, if you wish.
What Do Copyrights Protect?
Copyrights protect your work product or content. So, very generally, for a book—the name of the book would be trademark protected and the content of the book would be copyright protected. In the case of a blog, the name of the blog would fall under trademarks and the content (blog posts, photos, graphics, etc.) would fall under copyright.
Copyrights give the creators or authors the right to control the copying of their work. This means they have control over things like copying, creating derivative works, selling copies, reprinting or displaying the work. Others can do these sorts of things only if you’ve given them your permission or have given them the copyright.
When Work Is Copyright Protected
In the U.S., your original work is automatically copyright protected from the moment it is created or published. You don’t need to formally register your work. This does not mean, however, that your work won’t be stolen or used without your permission. You have greater protections when you formally register your work for copyright protection. And, before you can sue for copyright infringement, your work must already be registered with the copyright office.
There is just one copyright symbol—the © symbol. You can use this symbol whether you have formally registered your work for copyright protection or not. Using the symbol along with your name or business name and the year(s) of publication lets others know that this is your unique work product. You should also include a short copyright statement on your works.
Although you have greater protections with a formal copyright, it doesn’t necessarily make sense to register everything for a formal copyright. If your work is more likely to be stolen and used for a profit (such as works of art or graphics that could be easily printed on things like t-shirts or prints), then your work might be more appropriate for copyright registration. Other types of work might be less likely to be stolen and repurposed for profit. So, consider your work product before looking into registering for copyright protection.
How to Register
If you are interested in copyrighting your work, visit the U.S. Copyright Office website at copyright.gov for more information. Generally, registering requires three things: (1) your completed application form,
(2) a nonrefundable filing fee and
(3) a nonreturnable deposit (which is a copy or copies of your work to be “deposited” with the copyright office).
You can apply either online (through the electronic Copyright Office, or eCO) or using paper forms (through the copyright office website).
Reproduced with permission from Jackie Stoughton, “What You Need To Know About Trademarks And Copyrights” (Jade & Oak, 2016).
Disclaimer: I am an attorney, but I am not your attorney. The information in this article is for general informational purposes only and is not legal advice. This article does not create an attorney-client relationship. The author is not liable for any losses or damages related to actions of failure to act related to the content in this article. If you need specific legal advice, consult with an attorney who specializes in your subject matter and jurisdiction.