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Trademark vs. Copyright: How to Know Which to Use

Have you been stuck wondering whether to use a trademark or a copyright to protect something? Or whether you should use one of them instead of a patent?

Have you been stuck wondering whether to use a trademark or a copyright to protect something? Or possibly whether you should use one of them instead of a patent? It’s always best to start with identifying what these things are, and then going from there, we can get into how to register and use them. Let’s get into what these pieces of intellectual property are and their differences.

What’s a trademark?

A trademark is used to show who’s providing a product or service—think about seeing a company’s logo on a product or a SaaS website. Since IP is a right, each type of IP is fundamentally is designed to stop others from doing something—trademarks exist to stop others from selling a product or service under a brand that’s confusingly similar to yours.

Trademarks can protect various parts of a brand, including names, logos, emblems, symbols, colors, sounds, or designs. Trademarks can even be used to protect the look of a building—think about why all of those chain restaurants look similar. And yes, there are cases where companies have fought—and won—over their buildings appearing too similar.

Why and how do you register a trademark?

Trademarks come into being by using the trademark to market or sell products or services. Trademarks can be registered to provide significant advantages in enforcing your trademark rights. They can be registered at the state level or, more commonly, federally with the United States Patent & Trademark Office. One way to tell if a trademark is registered federally is that the little circle with the “R” is used (®). Trademarks that aren’t federally registered can’t use this symbol—it’s actually a crime if you do. Trademarks not federally registered are identified usually by an uppercase “TM” (™).

What’s the best way to use a trademark?

The best way to use a trademark is to pick a name, logo, and other brand elements that work well for what you’re marketing or selling, and remember the importance of consistency. Once you’ve decided on a trademark—whether it’s your company name or a product name—it’s best to continue using that mark for the product or service it’s paired with. As long as they’re used, trademarks can last forever.

What’s a copyright?

A copyright is used to protect a creative work, like a book, a blog post, or a video, by controlling if and how it can be copied, distributed, modified, etc. Copyrights can protect software code, promotional materials, lyrics, music, sculptures, artwork, books, articles, and more. The critical questions are whether the work is:

  • original,
  • authored (by a human—it’s still uncertain whether AI can author a copyright), and
  • fixed in something called a tangible means of expression, which is legal gobbledegook. An example I find helps is that the painting is not copyrighted when the idea is in the artist’s mind, but it becomes copyrighted when she paints it on the canvas. Or, the app’s code or design becomes copyrighted when the developer actually types the code rather than when the idea is just in the developer’s head.

Why and how do you register a copyright?

A copyright automatically exists as soon as a work that qualifies for one meets the conditions above. But, they’re often registered with the Copyright Office to firm up the claim to the copyright.

What’s the best way to use a copyright?

Since copyrights are automatically created when a qualified work is created, businesses often have—or have access to—far more copyrighted material than they realize. Given that, copyright enforcement often comes down to strategically selecting which works are of importance to the business, like designs, websites, finished videos, books, and other materials that serve a purpose aligned with the business’s goals. These major pieces can then be registered with the U.S. Copyright Office to provide additional enforcement advantages to the business.

Remember to keep in mind who owns the copyrights you use.

A critical aspect for businesses to keep in mind with copyrights is to make sure the business owns the copyright. A copyright initially vests in the author of the work. While there are mechanisms in law for an automatic transfer to the business under a “work-made-for-hire” scenario, it’s best not to rely on it. I typically advise its best to make it explicit in the agreements with employees or contractors who will own the copyrights.

Trademark vs. Copyright: Why would I choose a trademark or a copyright?

One of the biggest differences between a copyright and a trademark is what triggers their existence. A copyright comes into being the moment a creative work is physically written, drawn, typed, filmed, or otherwise created. A trademark comes into existence when a brand is used to market or sell a particular product or service—though I frequently work with clients to start registration of their trademarks before marketing or selling actually happens to get ahead of the process.

If something only qualifies for either trademark or copyright protection, the answer is straightforward.

If something could qualify for both, like a logo on a sold product, since trademarks and copyrights arise automatically, it often does qualify for both. But it’s often more practical for a business to prioritize a trademark aspect or a copyright aspect of a thing over the other. Thus, oftentimes business will categorize their brand elements into the trademark bucket and everything else that qualifies as a copyright into the copyright bucket within their intellectual property portfolio.

When would I choose a Patent over a Copyright or a Trademark?

The other type of intellectual property protection you can apply to the government for is a patent. I often receive questions regarding how to choose one over the other, so let’s discuss that quickly.

Trademark vs. Patent

We’ll take the question trademark vs. patent first because its easier—as an intellectual property attorney, I can’t imagine a scenario where you’d choose a patent over a trademark, or a trademark over a patent, as what they protect is fundamentally incompatible.

Copyright vs. Patent

This one may seem a little trickier as there is some overlap as to what can be protected with a patent and what can be protected with a copyright. But, it comes down to what aspect you are looking to protect. Are you looking to protect the actual creative work aspect of the thing itself—like the lines of code in software? Or, are you looking to protect the idea or functionality of the thing—like what the software does? If the former, you may be able to get by with simple copyright. If the latter, you’ll want to consider a patent claiming the inventive concept. Generally, patents will provide broader protection as they’re focused on the idea or functionality, and since you generally don’t include the lines of code in a patent application, you would still retain copyright in the lines of code themselves.

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