One thing there never seems to be a shortage of are news stories involving Intellectual Property (IP) violations. It seems like every other day there is a new story about someone who feels their IP rights are being violated and is ready to head into court set things straight. But, among other mistakes in their explanations, the press accounts very often seem to muck up the difference between an allegation of trademark violation and one involving copyright infringement.
Note: In what follows, I don’t say anything about some other important forms of IP, specifically, patents. Or trade secrets, for that matter. We’ll plan to cover that in a follow up post.
Here at Copyright Clearance Center, if only because of our name, our customer service staff still regularly hear the question “How can I copyright my band?” – a question that I started hearing MANY years ago when I started here in customer service. The question is harmless enough and easy to answer (You can’t copyright your band!), but it leads us to a larger point. Everybody out there nowadays, it seems, has some intellectual property-related content that they want to protect. So what should the Average Jane or Average Joe know to help them understand the difference between copyright and trademark?
Basically, copyright is the form of IP protection appropriate to works of original expression and it protects those works primarily from most copying, display or performance without the permission of the copyright holder; trademark, on the other hand, is a form of consumer protection law that protects the actual producers of goods and services from counterfeits or knockoffs by providing exclusive rights to a name, logo or other symbol that identifies the actual producer (and is not likely to be confused with someone else’s trademark). In each case, those “exclusive rights” belong to the original creator or a person to whom the original creator has sold the rights, and they entitle the holder of the rights to sue for infringement and collect damages in a court of law. Despite their common roots in “low tech” products and services (as opposed to technology protected by patents and many trade secrets), copyright and trademark are distinct forms of IP.
The quintessential example of copyright protection extends to literary works – that is, books and articles. (Copyright also extends to music, visual and plastic arts, and motion pictures, among other types of works.) While copyright is not so absolute as to forbid ALL copying or other unauthorized uses, it is intended to enable the creator to make whatever money the work is able to earn through sales and other uses and to stop others from interfering with those efforts. Over time, copyright has also been extended under one rubric or another to protect the rights of creators to maintain the association of their names with their works – that is, it protects the right of attribution. Thus, there are many novels, but only one “Dr. Sleep” ( © 2013 Stephen King – note that copyright symbol!).
On the other hand, the quintessential example of trademark protection comes in the context of brands. A logo or a company name functions in the marketplace to associate the product with the company responsible for it. For example, there are many cola-based soft drinks, but only one Coca-Cola® (note that little R in a circle, known as the registration symbol, which I will discuss further below); in fact, Coca-Cola is such a strong trademark that the company that owns it has also used it on a host of other products and services, from clothing to toys to advertising services).
Copyrights and Trademarks Can Be Specially Protected in the US Through Registration Although copyright law protects an original work from the moment that it is recorded in tangible form (including computer memory as well as paper) – meaning that zillions of copyrights are in fact created every day, even unintentionally – both litigation and licensing around copyrights ordinarily depend on registration. Copyright registration in the US is managed by the US Copyright Office (USCO). There are many firms and agents who will assist creators who are seeking to register the copyright in their works – a process that CAN be performed oneself through completion of an online form – but only one source of the registrations themselves, the USCO.
Trademarks, on the other hand, are created, as lawyers say, at common law – that is, once a name, logo or other symbol starts to be used by a producer of goods and services to identify those goods and services with itself, a trademark is created and can form the basis of an infringement lawsuit (as long as the trademark is not itself confusingly similar to someone else’s). While there are plenty of common-law trademarks in the marketplace, some of them of great value, federal registration of a trademark in the US brings multiple litigation and licensing advantages to the trademark owner. Federal registration of a trademark is a somewhat more involved (and expensive) process than copyright registration and takes place at the US Patent and Trademark Office (USPTO).
Note: Service marks are trademarks used in connection with services and are created and managed almost identically to trademarks on goods.
Neither copyright registration nor federal trademark registration is very expensive on a fee-per-registration basis (less than $100 and $500, respectively), but particularly the latter will often incur additional costs for legal assistance in analyzing trademark searches and in addressing objections from examiners in the USPTO.
Where does it get confusing?
A drawing or a logo may start its life in IP as a work protected by copyright because it is original to its creator. However, once it is adopted as a brand or used as some other sort of identifying mark for a brand, it can be registered for trademark protection as well. A famous example is the “tongue and lip” logo used by the Rolling Stones rock band. The iconic art was drawn by British art designer John Pasche under a commission from the band, and has been in use by the Rolling Stones since the early 1970’s.
Interestingly enough, while the copyright in Pasche’s drawing must at some point expire due to running out its term (probably 95 years from 1971, at least in the US, because the work – as a commission – is considered to have been created by the band), that is not true of the drawing as a trademark. In that guise, it can go on more or less forever – that is, as long as it is used in commerce by the business entity known as the Rolling Stones as a symbol of the band – whatever one thinks of the (so far) unrefuted immortality of one of its members, Keith Richards.
Copyright law and trademark law are distinct forms of intellectual property protection and are useful for different purposes. Copyright covers works of original expression, such as literature, the visual arts, and music. Trademark is best thought of as a form of consumer protection, ensuring that a brand is associated properly with the person or company responsible for offering it. I hope that I have helped explain that they are not interchangeable, even though some works (especially those in the visual arts) may start with copyright protection alone and later become trademarks as well – and then derive both sets of benefits for their owners.
Links to additional resources for learning more about this topic:
- “A Trademark is Not a Copyright or a Patent” (2019) by William M. Borchand, of Cowan, Liebowitz & Latman, P.C. (16 pages)
- “Trademark, Patent or Copyright?” USPTO . Part of their “Getting Started with Trademarks” collection of resources.
- “What is the difference between Copyright, Patent, and Trademark?” Copyright Alliance