So what are copyrights and trademarks?
Copyrights and trademarks are two entirely separate intellectual property assets that are frequently confused.
Let’s start with copyrights.
To grossly oversimplify, copyrights protect creative works, such as books, blog posts, photographs, sculptures, etc. Article I, Section 8 of the Constitution exists in part “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” This clause has manifested into the body of law we have today governing copyrights. Copyright ownership encourages people to create artistic, literary, musical, and other works by granting ownership of exclusive rights to their creations for a specified length of time (which. thanks to companies like Disney, is not a simple thing to calculate).
So what does a copyright do? A copyright grants its owner the right:
to reproduce the work
to prepare derivative works based upon the work
to distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
to perform the work publicly
to display the copyrighted work publicly
in the case of sound recordings, to perform the work publicly by means of digital audio transmission
in the case of a “work of visual art” the author has certain rights of attribution and integrity
You do not need to register your copyright to have all the rights above conferred by copyright law. Some of the benefits of registering your copyright include:
a legal presumption that the copyright is valid
a legal presumption that you own the copyright
the ability to recover up to $150,000 in statutory damages
the ability to recover attorney’s fees
the ability to prevent importation of counterfeit goods via the U.S. Customs Service
some jurisdictions require registration before any copyright rights can be enforced
worldwide recognition (167 countries)
Then what’s a trademark?
Trademarks protect consumers by clearly identifying the source of goods and services. They can include any word, name, symbol, device, or any combination of those.
Trademark law can be very complex, but it boils down to branding, which is pretty easy to understand. Here are some examples of trademarks:
NIKE – (Brand Name)
PEGASUS – (Product Model Name)
HYPERCOOL – (Product Feature)
JUST DO IT – (Slogan)
When you register your trademark, you gain the following benefits:
nationwide constructive notice to third parties of registration and ownership
the ability to bring action in a Federal Court concerning the mark
a legal presumption of ownership
a legal presumption of an exclusive right to use the mark
the ability to prevent importation of counterfeits via the U.S. Customs Service
the ability to recover certain statutory damages for counterfeiting
a deterrent to others from using confusingly similar marks
a date of constructive use
a basis for Foreign Filing
Clients frequently ask how trademarks are different from business names. In essence, a business name identifies a business with the secretary of state’s office where the business is incorporated. Naming requirements for a business are different from the requirements for a trademark. That said, a business name can also be a trademark, depending on how the business name is used in commerce. For example NIKE is part of a business name (Nike, Inc.), and it is also a trademark.
Overlap between Trademark and Copyright
In some situations, a copyrighted work can also be registered as a trademark. The best example of this is a logo. Generally, a logo is created by an artist to be used in a company’s branding, but the copyright for that logo may be owned by the artist unless otherwise agreed by the parties. If you have questions about this possibility, ask a lawyer.
This can create problems. For example, that artist could sell the copyright in the logo to another company, and that company could then begin using that same logo, which may create issues. In general, it is good to own the copyrights for a logo—or otherwise agree with the artist not to permit anyone else to use it—to prevent these issues from coming up at all.