Trademark vs. Copyright: What’s the Difference?

By Josh Gerben, Esq.

A trademark represents your brand or product.  Names, logos, and slogans are common trademarks.  A copyright, on the other hand, protects a work of authorship, including books, paintings, and even computer code.  To ensure intellectual property is protected, work with your attorney to obtain a federal registration.

What is a Trademark?

A trademark is anything that represents your brand in the marketplace.  The most common trademarks are business and product names, logos, and slogans, but it’s possible to register non-traditional trademarks, as well.  Unique color schemes, sounds, and even smells may have the potential to become a registered trademark.

Deciding which aspects of your business need to become trademarks can be challenging.  Start with the aspects of the business you want to represent your brand for customers.  The goal of any successful business is to have your product or service stand out in the crowd, and a federally registered trademark will do just that.  It will also protect you from others that might want to profit from your brand’s reputation.  Once registered and used consistently, your trademarks will help establish your unique brand by creating consumer recognition and growing customer loyalty.

How to Register a Trademark

Because the United States is a first-to-use country, you do have some legal protections simply by using the mark in public.  Unfortunately, those rights are quite limited.  For instance, without a federal trademark registration, your mark will only be protected in the small geographic region where your business is based.  If you plan to expand your business to another region, your common law rights will likely not protect you.  In order to gain the presumption of nationwide validity, you must register your mark with the United States Patent and Trademark Office, or USPTO.

Before you register your mark with the USPTO, work with a trademark attorney to conduct a comprehensive trademark search.  This will determine if your mark is already in use by another business or individual.  It can be frustrating to learn about an existing mark when you’ve invested time and money in creating your brand, but it’s best to learn this before you file your application and pay the associated fees.  If you find your mark, or one like it, exists, you may need to make some changes before filing.

Once you are certain another business or individual isn’t already using your mark, submit your trademark application to the USPTO as soon as possible.  This is because the date you file your application becomes your priority date, which means anyone wishing to file a similar mark after that date will likely be rejected.  After your trademark registration has been approved by the USPTO, it won’t expire, as long as you use the mark consistently and meet renewal deadlines.

What is a Copyright?

A copyright protects works of authorship.  Books, photographs, paintings, plays, and even websites can receive copyright protection.  Unlike a trademark, which protects owners against others using any mark deemed confusingly similar, copyright protections are limited to the exact piece of work or extremely close replicas.  A copyright will not protect concepts or ideas, but rather how those concepts or ideas are expressed.  For instance, the concept of a painting about a starry night is not protected, but Vincent van Gogh’s famous interpretation certainly is.

As a copyright owner, you have certain exclusive rights to your work.  You have the right to reproduce your work, or to create additional works based on the original piece.  You can freely distribute your copyrighted material, and you have the sole right to present the work in public, through display or performance.  These rights can be transferred to others with your authorization, but unauthorized use would be a violation of your copyright protection.

How to Register a Copyright

Copyright protections begin the moment you start to create your piece of work.  While copyright registration isn’t required for you to receive these protections, they are much hard to enforce without a registration in place.  Work with your attorney to file an application with the Copyright Office.  The process will require you to submit a copy of the work you wish to register, either electronically or by mail.  Copyright registration typically takes about 4-5 months to obtain but may take longer in some situations.

Once you’ve submitted your application to the Copyright Office, you should consider adding a copyright notice to your work.  Though it’s not a requirement of copyright protection, this notice is often enough to deter others from using the work without permission.  In addition, with a visible copyright notice in place, possible infringers will not be able to argue they were unaware the work was protected.  Most basic copyright notices include:

• The copyright symbol © or the word “copyright”
• The name of the copyright owner
• The year of publication

Register Your Trademark or Copyright

Federal registration is essential to ensuring your intellectual property is protected.  Whether you wish to trademark the name of your beauty product or you want to copyright a unique collection of photographs, work with an attorney to seek registration.  Then, monitor the use of your mark or copyright in the marketplace, and if you find possible infringement, consider taking immediate action to protect your brand or creative work.  Contact an experienced intellectual property attorney to begin the process to register today!

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Josh Gerben, Esq.

Josh Gerben, Esq. is the founder and principal of Gerben IP. In 2008, Mr. Gerben started the firm to provide high-quality trademark services at reasonable prices. Today, he is recognized by the World Trademark Review as a top trademark filer, having registered over 7,500 trademarks. The contents of this blog are for informational purposes only and may not be relied on as legal advice.