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- Fiduciary Liability vs. Employee Benefits Liability
- ERISA Fidelity Bonds vs. Fiduciary Liability Insurance
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- Directors & Officers Insurance
- Trademark vs. Copyright: What’s the Difference?
- What is the Difference Between Fidelity Bonds and Crime Insurance
Trademark vs. Copyright: What’s the Difference?
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Trademark and copyright are two different ways of protecting your (and your company’s) intellectual property. They’re obtained through either the U.S. Copyright Office or the U.S. Patent and Trademark Office. You can use them to stop other people and organizations appropriating or benefiting from your creations or business identity without permission.
This article explains the difference between copyright and trademark, what they protect, how you can use them effectively, and things to consider when making an application.
What is a Copyright?
A copyright lets you use, copy, develop, distribute, display, and perform something you’ve created while being recognized as its author or creator. A copyright therefore helps business owners protect and share something of value that they have created.
According to the U.S. Copyright Office, “Copyright is a form of protection provided by the laws of the United States to the authors of ‘original works of authorship’ that are fixed in a tangible form of expression.” To qualify as an original work of authorship, the work must be created “independently by a human author” and must convey “some degree of creativity” or uniqueness that distinguishes it from other works.
Copyright protection starts automatically in the U.S. when your original creation exists in a way that can be preserved. For example, you can’t copyright the thought or idea of a piece of software you want to make, but once you write that software code, it is copyrighted by default. You can then register your creation with the U.S. Copyright Office to ensure that the copyright can be enforced and to stop others from using or copying it without permission. Copyrights are granted to the person or business that created the work, and last for the lifetime of that person, plus an additional 70 years.
What Does Copyright Protect?
Copyright protects original works or inventions, to ensure the benefits of creating and owning those works goes to the creator. Copyright is therefore frequently invoked related to the following fields and industries, among others:
- Music and associated song words
- Dramatic works, including pantomimes and choreography
- Pictures, graphics, and sculptures
- Movies and other audiovisual creations
- Software or code
- Audio recordings
- Architectural designs
How to Protect Your Copyright
Although your copyright over your original work begins as soon as that work takes on a tangible form that can be preserved, there are some things you can do as a business owner or creator to increase your protection:
- Mark it.
Using a watermark, signature, or other type of visible imprint shows that this work belongs to you and prevents others from using your work without permission
- Add “Copyright” text or the © symbol.
Adding © or the word “Copyright” plus the name of the owner and year it was first published is another way to discourage others from copying your intellectual property. This makes it clear that the work is protected under copyright rules, and that it may not be used freely by others without permission.
- Register with the Copyright Office.
To do this, you’ll need to complete an application form, pay a registration charge, and include a copy of the work or creation you want to protect. Registering gives you more protection and rights over your creation, since it establishes a clear record of creation date and proactive steps to protect the asset. Registering your copyright is especially important if at some point you have to take a person or organization to court to dispute their unauthorized use of your creation
What is a Trademark
Trademarks are described by the U.S. Patent and Trademark Office (USPTO) as “any word, phrase, symbol, design, or a combination of these things that identifies your goods or services." Trademarks protect brands that customers recognize in the marketplace so that they can distinguish themselves from other competitors.
What Does a Trademark Protect?
Trademark protection prevents other people or organizations from using your name, brand, logo, or slogan in a way that could be construed as indistinguishable from yours. You can use a trademark to defend your:
- Company name
- Brand name
For example, Nike’s distinctive swoosh logo and slogan “Just Do It” are registered trademarks. But in other business examples, trademarks can apply even to sounds, colors, or gestures that help customers identify a specific brand. For example, Darth Vader’s breathing, Tiffany & Co’s shade of blue, and Usain Bolt’s signature lightning bolt move may all be considered protected trademarks of those respective businesses or individuals.
Trademarks can be very important for your business for the purpose of maintaining your brand and marketing, and avoiding counterfeits or fraud. However, having trademark protection on your brand assets does not necessarily mean that you “own” a word or phrase. For example, let’s say you trademark a logo for your plumbing company. Having that registered trademark will likely prevent another plumbing company from using a similar or identical name or logo, if it could be difficult for customers to distinguish between the companies. However, the protection won’t stop someone from using a similar design for a completely different type of business, like a restaurant, as it’s unlikely that customers will confuse the two companies.
Unlike copyright protections, trademarks do expire after a predetermined period of time. Instead, trademarks last for as long as you continue to use the name or brand assets in public in connection with your business.
How to Protect Your Trademark
For nationwide trademark protection, you have to register with the USPTO. Registering is important since it makes it easier to defend your trademark if you need to. Just using your brand assets in public without registering, on the other hand, gives you only limited safeguards within the region where you operate.
To register your trademark, first, you’ll need to check that the property you want to protect, or something very similar, isn’t already trademarked by another organization or individual. If it is not, then you can fill out an application, pay a filing fee, and wait to hear back from the USPTO.
Like copyrights, trademarked assets can be marked with a symbol to convey to others that your property is protected from use without permission. You can add the “trademark” ™ sign (or SM for service marks) to your intellectual property or brand assets to let others know you consider it a protected trademark. Once you’ve successfully registered it with the USPTO, you can use the “registered” ® symbol.
Considerations When Applying for a Copyright or Trademark
Creating something unique and original will help you separate your work from others, whether you go for a copyright or a trademark in the end. Carrying out thorough research before you start working on a project can help you avoid inadvertently “copying” something that already exists.
You can apply for copyright and/or trademarks on your own, or get help from a specialist intellectual property lawyer. They can help you search for, apply for, and defend copyright and trademarks. Since business owners may have personal liabilities for infringement of copyrights and trademarks, even if it is not intentional, it is important to approach this process thoughtfully and knowledgeably.
Protecting your work, brand, and company identity is a wise move. Knowing the difference between a copyright and a trademark and doing your best to safeguard them will help defend your business assets. Your business will be well-served by your diligence in protecting your own company assets, as well as ensuring you do not inadvertently misuse assets owned by others.