Disclaimer: This resource is for informational purposes only and is not legal advice. If you need legal advice, consult an attorney.
Copyright Compared to Trademark
Copyright is a type of intellectual property protection for original works of creative authorship fixed in a tangible medium of expression. Original works of creative authorship include paintings, photos, movies, music, and many types of written or literary material. Copyright ownership exists and vests automatically when the creative work is fixed in tangible media, but registering the copyright provides additional valuable benefits. You can find more information about copyright and the registration process through the United States Copyright Office’s website.
Trademarks are a different type of intellectual property that identify the source of goods or services in commerce. Trademarks are names, logos, or other signifiers that communicate to consumers that goods or services originate from a specific individual or business. In the United States, trademark ownership rights are established by using a trademark in commerce with particular goods or services. Registering the trademark with the United States Patent and Trademark Office provides additional valuable benefits. You can find more information about trademarks and the registration process through the Patent and Trademark Office’s website.
1. Protected Property
Trademark
A symbol, word, phrase, design, color, sound, or other device that is sufficiently distinguishable to identify and differentiate the source of goods or services when used in commerce.
Examples of protected marks include:
McDonald’s Golden Arches (symbol)
adidas (word)
Just Do It (phrase)
Nutter Butter peanut shape for cookies (design)
Home Depot orange, when used with hardware and a bold, stenciled font (color)
NBC Tritone (sound)
You can also access the United States Patent and Trademark Office’s database of registered marks.
Copyright
An original work of creative authorship fixed in a tangible medium of expression.
Types of protectable works include:
songs and sound recordings (audio and music recordings, sheet music, written lyrics, podcasts)
audiovisual works (movies, short videos, vlogs, documentaries)
pictorial, graphic, and sculptural works (drawings, paintings, graphic designs, photography, sculptures)
literary works (dramatic writing, nonfiction writing, novels, comics, poems, essays, scripts)
compilations (collections of other works)
Types of works that are protectable under the U.S. Copyright Act are listed here: 17 U.S.C. § 102.
2. Threshold for Protection
Trademark
A sufficiently distinctive mark that is used in commerce with identifiable goods and services.
Trademark rights are inextricable from use with specific goods or services in commerce. Using a mark with different goods or services might not infringe upon another trademark owner’s rights if the goods or services are different enough (Delta faucets and Delta airlines, for example, do not infringe upon each other).
A mark must be sufficiently distinctive to be protectable:
Fanciful marks, such as Exxon for gasoline or Tylenol for acetaminophen, are completely made-up words and therefore most distinctive. These marks receive robust protection.
Arbitrary marks, such as Apple for computers or Camel for cigarettes, have no relation to the product being sold -- the mark is otherwise arbitrary in that context and therefore distinctive within that channel of commerce. These marks also receive robust protection.
Suggestive marks, such as Burger King for fast food or Coppertone for suntan lotion, might suggest a quality or result of the product but they are still considered distinctive so they also receive protection.
Descriptive marks, such as American Airlines for an airline or Seattle’s Best for coffee, are not inherently distinctive because they describe a quality, component, ingredient, or feature of what’s sold. If such descriptive marks can be proven in court to be distinctive “source identifiers,” with evidence gathered over several years of continuous exclusive use, they might acquire secondary meaning and eventually receive some protection, but it is not guaranteed. Descriptive marks usually have weak or no protection.
Generic words, such as Beer for beer or Corn Flakes for corn based flaked cereal, receive no protection.
Copyright
Any work listed as protectable under the U.S. Copyright Act that is original, creative, and fixed.
A work must be an original creation by the author, and contain minimal creativity, no matter how crude, humble, or obvious.
To be fixed, a work must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” See 17 U.S.C. § 101
A creative work saved in computer memory or written on a scrap of paper is fixed. An unrecorded street performance is not fixed.
See also Feist v. Rural Telephone Serv. Co.
3. Notable Exclusions
Trademark
Generic words or descriptive words that have not acquired secondary meaning, merely identifying the type of goods or services.
For example, "ale" or even “hefeweizen” receive no protection and will be refused legal protection in connection with beer.
Some marks can later become generic through ongoing public use. The word ‘Escalator’ was originally a trademark brand name owned by Otis but became generic for a moving staircase after the public and Otis itself used the term to identify the type of thing. Such “genericide” often occurs when a product is singularly successful and there is no other term for it, or when a trademark owner does not assert its trademark rights in the face of generic uses of its mark.
For this reason, Google asks people to stop using the name of its search engine as a verb.
Copyright
Ideas and facts.
Copyright is intended to reward original, creative, often expressive works.
Copyright does not grant legal control over concepts that are accessible to the public such as abstract ideas and facts.
No one owns the idea or concept of two police officers with different personalities pairing up to fight crime together. However a script and motion picture expression of that concept, with unique creative expressions and embodiments (Beverly Hills Cop, Lethal Weapon, Bad Boys, Rush Hour, etc.), are separate, ownable intellectual properties.
No one owns the fact that some frogs are green. But Encylopedia Brittanica owns the pictures and text arrangements from its encyclopedia entry about the topic of frogs.
4. Key Rights Granted
Trademark
Rights to stop others from using a similar trademark if it is “likely to cause consumer confusion” based on:
strength of the mark;
similarity of the marks;
relatedness of the goods or services;
evidence of actual confusion;
marketing channels used;
degree of care taken by the relevant purchasers;
intent when selecting the mark;
likelihood of expansion of product lines; and
any other relevant factors.
See AMF v. Sleekcraft Boats (1979).
Copyright
Rights to stop others from:
reproducing copies;
creating derivative works;
distributing copies;
publicly performing the work; or
publicly displaying the work, or transmitting the work digitally (for sound recordings).
See 17 U.S.C. § 106.
5. Length of Protections
Trademark
Perpetual if the mark is continuously used in commerce; registrations can be maintained continuously with renewal formalities and filing fees.
The U.S. federal trademark application and process is available on the USPTO website.
Copyright
Copyright terms can vary greatly depending upon the circumstances and timing of creation. For more information see the link.
But generally, for works by individual authors created after 2002, rights last for 70 years after the author's death (or the last living author’s death, if more than one author created the work).
For anonymous works or works created within the scope of employment, rights expire 95 years after publication or 120 years after creation, whichever comes first.
6. Enhanced Rights with Registration
Neither trademarks nor copyrights must be registered to establish ownership, but registering creates valuable legal and economic rights.
Trademark
Trademarks can be registered nationally, internationally, and within individual states where the mark is used in commerce.
Both registered and unregistered marks are protectable, but registration provides several advantages, such as:
Border-to-border territorial protection, beyond just the specific zone of geographic use or reputation
Federally registered marks are presumed valid by courts
Federal registration grants standing to file a trademark lawsuit in federal court
Registered trademark owners can receive increased money damages and penalties against infringers
U.S. Customs will help prevent importing goods that infringe federally registered marks
See 15 U.S.C § 1072 and § 1115
Copyright
Copyrights can be registered nationally or internationally.
Both registered and unregistered copyrights are protectable, but registration provides several advantages, such as:
Ability to initiate an infringement lawsuit. See 17 U.S.C. § 411(a).
If registered within three months of publication, availability of increased money damages. See 17 U.S.C. § 412.
If registered within five years of publication, a presumption that the copyright is valid. See 17 U.S.C. § 410 (c).
7. Policy Purposes for Protection
Trademark
Protect consumers from marketplace confusion
Reduce consumers’ cost and time searching for goods and services
Reward businesses for valuable commercial activity with rights to the goodwill developed under their brand identifiers
Copyright
Reward creative authorship with economic benefit and legal rights
Enrich the public domain and allow additional creativity with copyright limits.