Copyright vs trademark, are sometimes mistakenly used interchangeably. However, each body of law is distinct, has a different purpose and protects vastly different kinds of IP assets.
A Trademark Protects Mainly Brand Names, Product Names and Service Names
The purpose of a trademark is to protect a word, phrase, slogan or logo, that identifies and distinguishes the goods or services of a company from those of others. Trademark is often used to protect a brand name, trade name, product name or slogan.
A trademark registration is highly valuable because it gives the trademark owner a perpetual monopoly over that mark, albeit limited to the goods or services sold under that mark. Unlike copyright, which expires after a set amount of time, trademark may last forever as long as the appropriate formalities are kept.
Trademark law is meant to protect consumers against confusion and fraud. If, only one company is allowed to use the Apple trademark in its field, consumers are less likely to be confused.
To illustrate, if two car companies use the name Tesla, it would be difficult to tell them apart. One may free-ride on the fame and reputation of the other and offer an inferior product. Some consumers might think that the two are affiliated, while others might mistake one for the other.
Additionally, the purpose of having a trademark is to stop competitors from using your business name, product name, service name or slogan for their own business. If they do, you will have a claim against them for trademark infringement.
Copyright vs Trademark. Copyright’s Wider Scope
Unlike trademark, which has a narrow application – the protection of brand name, product name, service name or slogan – copyright has a wide scope: Any “original work” is copyrightable. A song, a film, or a painting are all copyrightable. So are computer programs, software, source code, and object code.
To be copyrightable, a work does not need not be novel, ingenuous or aesthetically meritorious. The standard for copyright is low: All it needs is a “modicum of creativity.” Any work with a creative spark is copyrightable.
An example of something not copyrightable would be a list of customers or a yellow page phone listing. Something utterly unoriginal.
Copyright law gives the author of the work several exclusive rights:
1) Right of reproduction (to make copies),
2) Prepare additional works based on the initial work (known as the right to make derivative works),
3) Display the work publicly,
4) Distribute copies of the work to the public, and
5) Perform the work publicly.
All these rights belong exclusively to the author of the work unless he/she transfers them away.
The purpose of copyright law is “to promote the Progress of Science and useful Arts” as stated in the U.S. Constitution, the financial reward to the author being secondary.
Unlike trademark, copyright does not give rise to a monopoly. Additionally, several copyright law doctrines limit the purview of what is copyrightable within a work. One important limitation is that only the original elements of a work are protected by copyright. The non-original elements are not protected and could be freely copied by anyone.
Additionally, you would have a hard time stopping a competitor that created a work similar to yours if they can show that they independently created their work. Indeed, true independent creation is a defense to copyright infringement.
Copyright and trademark also have vastly different registration processes. A trademark registration often takes 10 months or more to be approved. During the process, other trademark owners have the opportunity to oppose a trademark application.
In contrast, it usually takes 2 to 3 months for a copyright to become fully registered and no opportunity is given to copyright owners to oppose the registration while the Copyright Office reviews it.
Where Trademark and Copyright Overlap
Now that you know more about the differences between trademark and copyright, we will point out one instance where trademark and copyright do overlap.
When a company uses a logo to identify its brand name, product name or service name, the logo can be protectable under both trademark law and copyright law. Indeed, a logo is used to identify and distinguish a product and service (which fits the trademark requirement) and often is sufficiently creative to qualify for copyright protection as well.
If you have any questions about trademark or copyright protection or want to learn more about our trademark flat fee packages, please contact our office at (212) 729-8505.