You have created something great and you want to protect it. But you're not sure whether to copyright it or trademark it.
In the worlds of business and the arts, this question often comes up about the difference between a copyright and a trademark and when to copyright something and when to trademark. And the marks are also confusing - which mark do I use when?
Copyrights and Trademarks as Intellectual Property (IP)
Copyrights and trademarks are both forms of intellectual property., which is a mental creation that has value to a business. In addition to copyrights, trademarks, and service marks, intellectual property includes patents. From an accounting standpoint, because this intellectual property has value, it is considered an intangible asset (with no physical form) and IP can be bought and sold, or its use can be licensed, (sold to someone to use it).
What is a Copyright?
A copyright is what businesses usually think of first when they have created an item of intellectual property and they want to make sure no one else uses it. Copyrights are used to protect what the Copyright Office calls "original works of authorship."
To be communicated, the work must be published somewhere that others can find it and available to others to see or hear or touch.
Works which can be copyrighted include books, articles, works of art, fabric works, sculpture, photographs, poems, plays, dances, musical compositions, television and radio broadcasts, computer software, and industrial designs. As you can see, all of these works are creative and artistic.
You can also copyright original work on a website, but domain names cannot be copyrighted. A recipe can be copyrighted, but not a list of directions or ingredients.
What Works Cannot Be Copyrighted?
Other works that cannot be copyrighted include:
- Works that are not fixed in some tangible form. For example, a speech that isn't recorded or written out cannot be copyrighted.
- Titles, names, short phrases, and slogans, including book titles
- Familiar symbols or designs, typographic variations or coloring
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devises
- Works that are "common property" or are in the public domain, like historical facts or measurement conversions.
The "public domain" is a term that means works that have no restrictions on their use. Work can be in the public domain if the copyright has expired, the owner has taken the work out of copyright, or copyright law doesn't protect it.
If I Can't Copyright Something, Can I Trademark It?
Some of the creations that cannot be copyrighted can be trademarked. For example, you can trademark a title or name, short phrase, or slogan, along with a logo.
A trademark is a word, name, symbol, or device, or any combination which is used or intended to be used to identify and distinguish the goods or products of one company from those of others. For example, your company name may be able to be trademarked, along with your logo or the artwork that goes along with your company name.
You might also be able to trademark the name of a product your business sells (in addition to patenting the product, if it is something new) so that no one else can use the name.
A service mark is another type of trademark, for service businesses. For example, insurance companies and delivery services use service marks.
|Copyright vs. Trademark – A Comparison|
|Use||Original works of authorship||Identifying goods or services|
|To Register||U.S. Copyright Office||U.S. Patent and Trademark Office|
|Symbol||(c) Owner Name, Year - on all works||Before registration TM or SM;
After registration ®
|How long valid||Life of author + 90 years||Must file "maintenance documents" after a specific number of years|
|International registration?||Not available||Register using TEASi System|
Can I Trademark a Business Name?
Let's say you have a great name for your business. Maybe you are thinking you should trademark that name. Before you consider trademarking it, you should:
- Check the name with your state, to make sure no one else in the state is using it.
- Then, if no one else has the name you want to use, register your business name with your state. If you are forming a new business as a corporation, partnership, or LLC, your business name is registered automatically as part of the business registration.
After all this, you might want to consider trademarking that name. However, not all business names have the ability to be trademarked. There are specific criteria for trademarking, and someone else may already be using the name.
The U.S. Patent and Trademark Office explains that just because you have registered your business with a state doesn't mean you have trademark rights. You should trademark your business name to make sure it isn't confused with other trademarks.
How Do I Register a Copyright or Trademark?
Some differences and similarities between copyrights and trademarks. In general, you don't necessarily have to register a copyright, but you should always register a trademark.
Registration for copyrights. You don't have to formally register a copyright in order to be able to enforce it, but you should always use the copyright symbol ©, the year of first publication, and the copyright owner on every instance of the work.
Registration for trademarks. You don't have to register a trademark to use it, but if you want to enforce your exclusive use of a trademark, you must register it. While the registration is being processed, use the "TM" or "SM" mark; after registration, use the ®.
How Do I Search for Existing Copyrights or Trademarks?
Before you attempt to register for a copyright or trademark, be sure to check to make sure no one else has a copyright or trademark on what you want to register. The Copyright Office and USPTO both have databases you can search.
For a listing of registered trademarks, search the TESS system.
To search for an existing copyright, use the Copyright Office's public catalog.
Do I Need an Attorney to File a Copyright or Trademark Application?
Both the Copyright Office and USPTO have online services that allow you to register a copyright or trademark yourself. But having an intellectual property attorney help you through the process is advisable, for several reasons:
- An attorney can do more thorough research on the databases, to be sure you are not using a trademark or copyrighting something someone else has first claim to.
- IP attorneys know how to smooth the process to get a trademark or copyright registered faster, and
- An attorney with knowledge of your business and IP law can help you if you need to file a lawsuit against someone for violation of your copyright or trademark.
U.S. Copyright Office. "Circular 1 Copyright Basics." Page 1. Accessed Oct. 9, 2020.
U.S. Copyright Office. "What Does Copyright Protect?" Accessed Oct. 9, 2020.
U.S. Copyright Office. "Circular 1 Copyright Basics." Page 2. Accessed Oct. 9, 2020.
U.S. Patent and Trademark Office. "Basic Facts about Trademarks." Page 2. Accessed Oct. 9, 2020.
U.S. Patent and Trademark Office. "Trademark, Patent, or Copyright?" Accessed Oct. 9, 2020.
U.S. Copyright Office. "Circular 1 Copyright Basics." Page 4. Accessed Oct. 9, 2020.
U.S. Patent and Trademark Office. "Basic Facts about Trademarks." Page 13. Accessed Oct. 9, 2020.