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Trademark vs. Copyright: What Should You Know?

Trademark vs. Copyright: What Should You Know?

If your business is part of a larger brand, or if you regularly create your own original marketing materials, you may be searching for a way to protect your business assets from intellectual property (IP) theft. 

In today’s digital environment, dealing with IP theft can mean more than unfair competition—stolen IP has the potential to harm your reputation and cost your customers.

Below, we discuss trademark and copyright: the two main tools you can use to shield your intellectual property from unauthorized use.

What Intellectual Property Can Be Protected?

Both copyrights and trademarks allow you to protect your business by suing anyone who uses your IP without your permission. 

IP can be broadly defined as “creations of the mind” and include:

  • Inventions
  • Literary works
  • Art
  • Symbols
  • Logos
  • Graphic designs

IP can also include business ideas and the processes and products derived from these ideas. If you can imagine it—a copyright, patent, or trademark can probably protect it. 

Differences Between Copyright and Trademark

Copyright Protections 

Copyright protection is generated upon the completion of an original literary or artistic work. This includes:

  • Poetry
  • Novels
  • Art
  • Movies
  • Songs
  • Architecture
  • Computer software
  • Research

These works are automatically protected as soon as they’re recorded, with no additional action necessary.

It’s important to note that copyright applies only when the original work is preserved in some way. 

As the adage goes, “if a tree falls in the forest and no one hears it, does it make a sound?” Well, if an artistic work is not recorded, written down, or otherwise preserved in some manner, it can’t be copyrighted—and therefore isn’t vulnerable to IP theft.

A few things that can’t legally be copyrighted include

  • Principles
  • Discoveries
  • Ideas
  • “Common property” works like calendars and BMI charts
  • Works that are in the public domain 
  • Lists of ingredients or tables of contents

Copyrights don’t last forever. Many works that are currently in the public domain exist there because their copyright has expired—which generally occurs 70 years after the author’s death. 

Trademark Protections

A trademark is a type of IP that protects marketing materials—words and phrases, designs, symbols, slogans, and logos that are used to distinguish one brand from another. Trademarks can include everything from a product design (like the ubiquitous Coke bottle) to the McDonald’s “I’m lovin’ it” slogan to the Golden Arches themselves. 

Unlike copyrights, trademarks have no expiration. As long as you file the appropriate documents and pay the fees assessed, your IP can be protected by trademark forever. 

Protecting Your Copyrighted and Trademarked Material

Another key difference between copyrights and trademarks involves the specific ways in which they protect IP. 

Copyright Options

Copyright takes effect immediately without requiring any action from the IP creator. However, there are a few other steps you can take to ensure the copyrighted nature of your work is clear. 

  • Watermarking: If your creation is watermarked or signed in some other way, it can be easier to draw a clear connection between you and your creation.
  • “Poor man’s” Copyright: If you’ve ever sent yourself an email with a copy of your own written work attached, you’ve helped create a “poor man’s copyright”—a time- and date-stamped document showing that you’ve had possession of this material for a specified period.
  • Creative commons: Creative Commons is a nonprofit organization that offers free copyright licenses and is committed to expanding the availability of non-copyrighted material. 
  • Copyright registration: Although it’s not required, registering a copyright can make it easier for you to sue if you need to protect a copyrighted work. This means completing an application, complete with fee, and sending a copy of the work to the U.S. Copyright Office (USCO); the USCO will then add your copyright to the public record. 

Trademark Options

Just as with copyrights, registering a trademark isn’t required—but it makes it easier to prove and pursue IP theft. 

  • Perform a trademark search. Before going down the trademark path, it’s crucial to ensure that the materials you’re seeking to trademark aren’t already being used by someone else. 
  • Check with your state’s trademark office. This check will help ensure that the trademarked materials aren’t being used on a state level.
  • Complete an online application with the U.S. Patent and Trademark Office (USPTO). Registering your trademark with the USPTO allows you to use the registered trademark symbol, “®”, indicating your IP is legally trademarked. 

If you don’t register your trademark through the USPTO, you can still mark the material as trademarked—but you’ll use the ™ common-law symbol.

In Summary

Both copyright and trademark can help protect works that you’ve created or that help you market your business. But pursuing intellectual property protections can sometimes be complex. If you’re interested in preserving your IP rights but aren’t sure where to begin, Weaver Bennett & Bland can help. Our experienced attorneys can work with you to identify the best ways to protect your IP now and in the future. Give us a call at (704) 844-1400 or schedule a consultation online


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