The difference between copyright and trademark protection is very likely the most common question that trademark lawyers receive from potential clients.
Even experienced entrepreneurs and business owners are sometimes confused by the question of which form of intellectual property protection is actually required for a business name, product name, slogan, or logo.
From time to time, the question of whether patent protection is applicable also arises.
The short answer to questions regarding the difference between copyright and trademark protection (and/or patent protection) is—it depends!
It may be the case that only trademark protection is required, or that only copyright protection is required, or that patent protection is required.
Often, it may be the case that more than 1 form of intellectual property protection is required. Notably, trademark registration and copyright registration often go hand-in-hand to fully protect a brand.
This article will discuss the differences between these areas of legal protection.
What Does Copyright Registration Do to Protect Your Brand?
The registration of a copyright with the US Copyright Office simply records your ownership of a copyright in a work that you have created.
If you write a novel, paint a mural, or compose a song, that novel, mural, or song is automatically protected by your copyright under US law.
You don’t have to file anything anywhere in order to be entitled to copyright protection under US law. By virtue of being the creator of a work, as it is known, you are the copyright owner.
This applies to you whether you are an artist, graphic designer, musician, rapper, even an interior designer or architect—depending on specifics of the work in question.
Copyright law in the US exists to protect the creator. It exists to foster the viability of the so-called Marketplace of Ideas, in order to preserve the economic value of creative output. It ensures that creators have the ability to reap the economic value of their creations—and to therefore incentivize creators to keep creating.
Copyright law exists, in other words, to encourage a societal value: art, creativity, and, with it, enterprise.
Without copyright law, there is no guarantee that you will reap the economic rewards of your creative labor. Without copyright protection, there is less incentive to create art or design or any of the other works that this area of intellectual property includes.
You made it, you own the copyright. That’s the general rule.
The purpose of registering a copyright ownership right with the US Copyright Office is to create an indisputable, official record of that ownership should you need to litigate the question of copyright ownership at a later date.
Copyright law, however, can creep back into the trademark protection discussion, as will be discussed below.
What Does Trademark Registration Do to Protect Your Brand?
The difference between copyright and trademark protection is significant.
The purpose of trademark law is not to protect your creative output simply because you created it. Rather, the purpose of trademark law in the US is to protect consumers.
Trademark law serves to offer a guarantee to people that, when they buy a product or service, they are buying what they think they are buying and that they are buying it from the person or enterprise from whom they think they are buying it.
US consumers are the subject of trademark protection, in other words. Not you.
That said, trademark registration is vital for the protection of any brand operating in the stream of US commerce.
Trademark registration with the US Patent and Trademark Office (USPTO) provides owners the exclusive right to use that business name, product name, slogan, or logo in commerce across the United States.
When you register a trademark, you have the right to sue anyone else attempting to use that or a confusingly similar trademark in Federal district court.
Your registration will—without requiring you to do anything at all—prevent other similar trademarks from being registered in the first place.
Trademark registration allows you to request that US Customs block the import of infringing knock-off products.
Trademark registration and the brand protection that comes with it provides value to your business in the marketplace. Should you ever wish to sell your business or accept a buy-out offer, your business will only have value to that buyer if its brand is protected with US Trademark Registration.
When you register your trademark, you have the right to stick that ® symbol beside your trademark on your marketing, on your product packaging, and anywhere else that you use the trademark.
That ® symbol is that guarantee to consumers that they really are buying your product and not someone else’s.
Unlike copyright protection, however, trademark registration protection persists only so long as you are actually selling the product or service for which it is registered in interest commerce.
This is a primary difference between copyright and trademark protection.
Copyright protection lasts until it reaches the limit of protection under US copyright law. For new copyrights, this is generally for the life of the author or creator + 70 years. You don’t have to do anything specific to obtain copyright protection for this duration.
Trademark protection will last forever—so long as you keep using it as a trademark. If you stop, however, the trademark will become available for others to use.
You must continually renew trademark registration every 10 years with the filing of something called a Statement of Use, providing evidence of that continuing use in interstate commerce.
In the case of a logo or design, it is possible to own a trademark but fail to own the copyright in that same design.
This is possible because, as you’ve seen, copyright and trademark protection are two entirely different forms of intellectual property protection arising from two completely different US statutes.
This is a highly problematic situation.
Use of a design, when this is so, as a trademark can also be a violation of the logo creator’s copyright ownership.
Thus, when commissioning a new logo for use as a trademark, it is essential to retain the services of an experienced copyright and trademark lawyer to draft an agreement assigning the designer’s copyright ownership to you before the work is created.
Patent Law and the Difference Between Copyright and Trademark Protection
Although confusion between patent law and the difference between copyright and trademark protection does not arise quite as often, it is worth noting here as well.
Patent protection is more like copyright protection than trademark protection.
Patent law in the US protects a device, machine, system, or other “innovation” from use or manufacture or import or sale of that innovation.
It persists for a fixed period as does copyright protection, and it does not require continual use in commerce, much like copyright protection.
Trademark registration, at the end of the day, protects your brand and your customers. It does not exist to protect the fruits of your ideas.
The Difference Between Copyright and Trademark Protection: The Bottom Line
The bottom line regarding the difference between copyright and trademark protection is that, if you are confused by the distinction and aren’t sure which form of protection you need or which in what order, a consultation with a Detroit copyright and trademark lawyer will be very helpful to you.
Noble Path Trademark Law is a boutique US law practice located in Metro Detroit and assisting enterprises in every industry with trademark registration, trademark renewal, trademark monitoring, and Office Action refusal response matters.
We offer virtual consultations, premium customer service, and the expertise you need to maximize your odds of trademark registration success.