Copyright vs Trademark

Every business big or small ponders the name of their venture and eventual logos that will represent the face and brand of the company in marketing and packaging materials. In contemplating these important business matters, business owners should have a basic understanding of how to legally protect the name and logos as intellectual property of the company. Most businesses will deal with one or both of two areas: Copyright Law or Trademark Law Protection which have very different aspects and intent to them. To avoid wasting funds since most filing fees are nonrefundable, it’s imperative to know which protections are of an immediate need and what can wait until a business is bringing in profit or not needed at all.

What is a copyright? Copyright is defined as the exclusive right to print, publish, perform or display one’s creative work of original authorship. The work must be of minimal creativity and be in a tangible form. This concept generally applies to the creation of books, artwork, music, photography, film, and choreography, some furniture and clothing designs. Surprisingly copyright also applies to the creation of some software.  In the small business context, some logos could be considered artwork where it meets the minimal creativity standard.  It is meant to protection one’s original expression of an idea and NOT the idea itself. For example, Mickey Mouse is Disney’s original expression of a mouse (the idea).Disney could not prevent another company from creating its own version of a mouse so long as it is relatively original such as Jerry the Mouse of Tom and Jerry.

How is copyright protection established and how long does it last? One of the interesting aspects of US Copyright law is that “Copyright” protection automatically attaches to the work upon creation of it. This means that even without filing a Copyright registration, the work is already guaranteed some protections. However registration is encouraged to serve as notice to others, ensure the full protections of the law and before a copyright infringement action can be filed in court if necessary.

The length of Copyright protection can vary based upon who created the work. Where the original creator is involved the protection is for 70 years plus the life of the creator. However in the work for hirescenario common to most small business owners, the length of protection is 95 years from the date of publication or 120 years from the date of creation whichever expires first. Unless super creative, this is specifically important to most small business owners because many hire a graphic designer or some other independent contractor to create logo designs for the company.  To ensure the business can use the logo in any manner deemed fit for the company vision and goals it’s vital to get a signed agreement in which the graphic designer/independent contractor expressly assigns/transfers all rights in the logo to the company/business owner. With that agreement in hand, the owner can then file a copyright registration of the logo as likely artwork so long as it meets the minimally creativity threshold. The fee for Copyright registrations varies between $35-55 and can take up to a year to process.

What is a trademark? A trademark is generally a word, logo, symbol or phrase created with the main purpose of distinguishing a company from its competitors in the same consumer market. A trademark is either the face of a product or service (service mark). Keep in mind that in the small business context, a logo can be trademark under trademark law also known as the Lanham Act and also protected under copyright law. One example that comes to mind is Mickey Mouse. Mickey Mouse started off as a film cartoon character-copyrightable character. This famous mouse is one of the most recognized characters and a logo associated with the Disney Company and featured in countless movies, books on cereal boxes, clothing, mugs, etc.

How is trademark protection established and time length of protection? Where copyright protection is automatic and registration is somewhat a formality, Trademark protection does not automatically attach upon creation. The business owner is required to offer their product or service to for sale to the public before seeking federal trademark protection. Why this a requirement? The intent behind trademark law was to ensure that consumers could easily and reasonably be able to distinguish between competitors and prevent consumer confusion when choosing products and services in the marketplace. It is not an absolute right that can be dormant or unused. In fact, even after a trademark is approved through the USPTO, the trademark owner is required to maintain use at all times or risk losing protection under the theory of abandonment.

Further trademark protection does not expire so long as the owner maintains use in the marketplace and pays required maintenance fees. The fee for a trademark is generally $325 for each area that a business owner wants protection in or what’s called an International Class (IC). As an expert in music and working with primarily artists/songwriters, most of my clients choose protection in IC 41- for Entertainment and IC 25 for clothing and footwear to cover merchandise that fans may want to purchase. But for every area that a business sells a product or offers a service will be an area that must be claimed and comes with a fee.

So why choose a trademark AND copyright or one over the other? Keep in mind that not all logos meet the copyrightable standard but most will always meet trademark standards where they do not cause confusion with another competitor in same consumer market or safely co-exist in separate unrelated markets (i.e. Magnum condoms and Magnum ice cream). Some logos may only qualify to be a trademark and but not copyrightable.

Further we must consider the intent behind the Copyright law versus the intent behind Trademark law.

There are 6 exclusive rights that a copyright owner generally has:

1. The right to reproduce (make copies) of the work

2. The right to create derivative works based upon the original work (i.e. a book later depicted in a film)

3. The right to distribute copies to the public for sale or rental

4. As it relates to artistic works, the right to publicly perform the work (i.e. live concerts and plays)

5. As it relates to artistic works, the right to display work publicly (i.e. an art museum)

6. As it relates to sound recordings or music, the right to allow music to be transmitted via radio to listeners

As one can see, Copyright law was most intended for creative works— books, films, music, art and photography to name a few and not intended to stand in place of trademark protection.

Further keep in mind that Copyright protection protects one’s original work of authorship that is minimally creative and in a tangible form. A competitor could easily create their owner version of a work so long as it meets the Copyrightable standards.  Where a business creates content such as e-courses, programs or any kind of creatively put together media content, Copyright protection becomes imperative to fully protect the product offered.

However the intent of Trademark law is to prevent consumer confusion in the same marketplace. If a competitor’s logo is substantially similar to another competitor and they are both in the same market and attracting the same consumers, that competitor could argue unfair competition and that consumers could be confused or mislead into buying that product. The intent behind these laws become vital when deciding what business goals regarding marketing materials such as logos and the product/service to be offered. No business wants to waste marketing dollars on areas of protection they may not need or certainly not inadequate protection.  Every business will be different, with varying concerns but I can say for certain that every business will need trademark protection but not always copyright protection depending upon the nature of the business. Further keep in mind that this blog post was meant to scratch the surface of Copyright and Trademark differences that easily understood. Not every nuance could be thoroughly examined in one blog post. If you are a small business owner looking for one on one consulting to determine your IP needs, feel free to reach out via email- ejlee.ejleelaw@gmail.com

ALWAYS SEEK INDEPENDENT LEGAL ADVICE FOR YOUR SPECIFIC SITUATION

EJLee Law Practice is a boutique law practice specializing in Entertainment, IP-Copyright and Trademark and Small Business Matters

You can find EJLEE Law on Twitter @ejleelaw and http://www.ejleelawpractice.legal

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