I’m often asked if copyrights and trademarks are the same things. If you’re wondering, the quick answer is no. I’m excited to finally explain the difference between the two and to hopefully clear up any confusion once and for all!
The United States Patent and Trademark Office (USPTO), defines a trademark as a “word, phrase, symbol, or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.”Some examples of trademarks include a brand’s logo, slogan, or symbol. A service mark is defined in the same way except that it is used to distinguish the services that you are going to perform for your customers (i.e., an accounting service, legal or medical service, etc,).
I like to think of trademarks as a company’s branding (i.e. logo, symbols, slogans) and how that company tries to differentiate itself from its competitor’s products or services. The primary purpose of registering a trademark is to prevent consumer confusion. For example, the mark “McDonalds” has been registered by the well-known fast-food company. If another fast-food company decides to use the mark “McDonalds” as its brand name, this will confuse consumers into thinking that the second company is somehow associated with the first. That second company would, therefore, be infringing on the first company (McDonald’s) trademark. This is an example of why it is critical to perform what’s called a “Clearance Search” to make sure that the mark you’re interested in protecting is not already registered.
On the other hand, copyrights protect original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Specifically, copyrights protect original works of authorship that are “fixed in a tangible medium of expression.” For example, this means that as soon as a songwriter puts his or her lyrics on paper, that song is automatically copyright protected. Although the songwriter automatically receives copyright protection, in order to bring an infringement action, seek monetary damages in a court of law, and to recover attorney’s fees, that songwriter would have to show that the work has already been registered with the United States Copyright Office.
In summary, trademarks protect the branding aspects of a business (think logo, slogan, symbol). Copyrights protect the actual creative works that are put in a “tangible medium,” for example, photographs, songs, movies, literary works. Both trademarks and copyrights require registration in order to bring an infringement action and to seek compensatory damages.
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*This information is for educational purposes only. No attorney/client relationship has been formed.