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Trademarks vs Copyrights?

Updated: May 8

Though you can’t physically hold or touch intellectual property, it can be stolen just the same if it’s not properly protected.

If you had $100,000 worth of tools for your construction business, would you leave them unattended overnight? What about work vehicles? Would you ever park it in a not-so-good part of town with the windows down and the keys in the ignition? Of course you wouldn’t!

Similar to physical property, your intellectual property needs to be protected or someone can simply steal it.

When it comes to the actual protection, there are two ways to go: a copyright or a trademark.

Copyrights vs Trademarks: What's the Difference?

Copyrights and trademarks both protect intellectual property.

Intellectual property is an idea or creation that someone thinks up. This is different from physical property such as a car or a refrigerator. Intellectual property can be many things, but some common ones include logos, books, computer programs, inventions, and art.

The main differences between copyrights and trademarks are the type of intellectual property they protect and the registration process.

Here's What a Copyright Protects

Copyrights generally protect the rights of people who create intellectual works such as:

  • Music

  • Art

  • Computer code

  • Books

  • Online courses

  • Movies

  • Original writing

The list above isn't all-encompassing, either. Creative work is protected as soon as it's created as long as it has a tangible format, meaning it's written down somewhere. If you went to an open mic night at a coffee shop and spoke an original poem (that was never written down before) from memory, you probably wouldn't be able to copyright that work.

If you’ve written a play, developed an online seminar, or generated the next best iPhone app, you’ll want to get a copyright.

How to Register a Copyright

Copyright protection starts immediately after a creative work is created. You don't have to officially register for a copyright to protect your work, as it's automatic. However, if you need to enforce your ownership rights of an original work later on, it's much easier if you registered your copyright with the USPTO.

To register a copyright, you'll work with an attorney to file your application with the U.S. Copyright Office.

It's recommended to obtain a registered copyright for your work as soon as possible. Think of it as a safeguard for any future copyright infringement issues — if someone steals your work and you didn't officially copyright it first, it could be very difficult to prove you're the original creator.

Here's What a Trademark Protects

Trademarks protect a company's name and the name of its products, logo, and slogans. Anything that helps distinguish a brand, or a source of goods, is likely eligible for a trademark.

Trademarks are created to protect "marks", which is the actual piece of intellectual property such as the name, slogan, or logo.

Examples of popular trademarks include:

  • The Nike swoosh symbol

  • Google's brand name

  • Apple's

  • Generic mark - this type of trademark offers the least amount of protection and is very difficult to get approved by the USPTO. It's used when a mark is very similar to a generic name for something. For example, you wouldn't be able to trademark a coffee brand that was just called "coffee".

  • Descriptive mark - these describe a good or service, such as a "cozy" blanket or "tasty" snack food. While not as impossible to register as a generic mark, we discourage clients from trying to trademark descriptive marks due to the extensive time, effort, and cost required.

  • Suggestive mark - These are marks that suggest a characteristic based on the name. For example, the brand KitchenAid suggests that the products will "aid" with your work in the kitchen. These usually get approved as trademarks.

  • Arbitrary mark - this type of mark is a common word, but one that's used for an unrelated product or service. For example, while an apple is a common fruit, using Apple as a brand name for a technology company is fine. For these scenarios, trademarks are generally approved.

  • Fanciful mark - the strongest trademark with the most protection, fanciful marks use made-up phrases to describe something. Examples of fanciful marks include Xerox or Polaroid. These give your business the highest level of protection and are the easiest to trademark.

How to Register a Trademark

Registering a trademark is a lot more nuanced than registering a copyright. It involves an initial search phase, application process, and working with an attorney to respond to any office actions issued by the USPTO.

First, it's important to work with an experienced attorney to make sure your mark is strong enough to be protected. Then, you'll need to search for any other parties using a mark that's similar to what you're looking to trademark.

If everything goes well with the search, it's time to fill out and submit your application to the USPTO.

Once your application is submitted, it's up to a judge to approve or reject your mark for publication. If you're issued a rejection, you have six months to submit a response. At this stage, the USPTO recommends enlisting the help of an attorney to draft your response.

If your mark is approved, it will be officially published. If no objections are filed against your mark, your mark will be registered and you'll be issued a letter of registration.

Timeline to Get a Copyright vs Trademark

The trademark process takes about 12-18 months from start to finish. From the initial search phase to official approval (or rejection), the process could be drawn out if your trademark is rejected or if any other parties file objections once your trademark is published.

Copyrights are a bit different, as creative works are copyrighted automatically after they are created. However, if you want the rights to enforce your ownership over said creative work, copyright registration is important. The copyright registration process usually only takes about 3-5 months.

Trademark vs Copyright: Which One Do I Need?

The question of whether you need a trademark or copyright isn't up to your own personal decision — it's based on the type of intellectual property you're looking to protect. Most original creative works require a copyright, while marks that describe a brand, product, or service need trademark registration to be protected.

If you need help determining what type of intellectual property protection you need, or would like help obtaining said protection, contact us today!

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