The difference between a trademark and copyright is commonly misunderstood, with the terms often used interchangeably or in reverse. But if you’re a business owner, creative or entrepreneur, it’s important to understand the differences between these types of intellectual property. Knowing what is covered by a trademark and what is protected by copyright law can help you recognize when you should enlist an intellectual property lawyer to protect your brand and creative works.

What Are Trademarks?

Trademarks identify the source of a good or service and distinguish it from others. A trademark can include a word, phrase, logo, design, or a combination of these. In some cases it can even be a sound, color, or smell. Essentially, it is a brand.

Iconic trademarks are everywhere. When you see the Apple computer logo, you recognize it as a signifier that the product is an Apple product. The trademark tells you as a consumer that you can expect a level of performance and quality, and it is therefore an incredibly valuable asset of the Apple brand.

What Is Copyright?

Copyright protects artistic or creative works from copying or misuse. This could include illustrations, paintings, books, music, films, photographs, websites, advertising content, software and more. To be copyrighted, the work must be original to an author and fixed in a medium, such as film, print, digital recording, canvas, etc.

To understand if a work can be copyrighted, it’s important to understand the originality aspect. For instance, you could not claim copyright to a list of facts, such as the 50 state capitols. However, you could copyright an original artistic drawing of a map that shows the 50 state capitols.

In some situations, a work can be both used as a trademark and protectable by copyright. This is not unusual for logos, which are original artistic works that indicate the source of the rights holder’s goods or services.

What Automatic Protections Apply to Copyrights and Trademarks?

One reassuring thing about both copyright and trademark law is that common law rights are conveyed automatically, without any formal registration with a government body (i.e. without requiring legal work).

In the United States, you obtain trademark rights as soon as you begin using a trademark on specific goods and/or services in commerce. On an unregistered basis, your rights are limited to the specific geographical region in which the goods and/or services are sold or rendered. Registering your mark with the U.S. Patent and Trademark Office conveys nationwide rights, allowing trademark owners to enforce trademarks against junior users of a mark, even if you are actually providing the services in a different area.

With respect to copyright, a creators’ rights to original work are conferred automatically. However, without registering your work with the U.S. Copyright Office, the rights are somewhat limited. For example, a creator cannot seek statutory damages without a registered copyright. 

What do the various symbols—^TM, ®, ©—mean?

You have likely seen the trademark symbol, ^TM, (or the lesser used ^SM for service marks) on packaging and other branded content. As already discussed, in the U.S., simply using a trademark in connection with goods and/or services confers common law trademark rights. Brands can – and should – use these symbols to provide notice that the trademark is the source of the goods. Once a trademark is federally registered, you can begin using the ® symbol to indicate that the trademark is formally registered. A federal registration is good for 10 years, and can be renewed in perpetuity.

While none of these symbols are mandatory for your brand to use, it is strongly advised. Part of the role of being a trademark owner is to police the use of the trademarks, and using the symbols puts others on notice that your brand is trademark protected.

Similarly, using the © symbol on an artistic work helps communicate to others that it is copyright protected. It conveys that you as the author understand your ownership rights, and should be contacted for any reuse or licensing requests. Copyright lasts for the life of the author plus 75 years. (This explains why you recently may have seen the Steamboat Willie version of Mickey Mouse in rather un-Disneylike applications.)

When Does Your Business Need Legal guidance for IP Issues?

Although some automatic protections apply to trademark and copyright holders, there are appreciable advantages to working with an attorney on these issues. For new brands or products, an attorney can perform a competitive search and ensure that a chosen trademark is not already in use, thus saving you from expensive re-branding costs. Attorneys can also help clients avoid conflicts regarding copyright ownership with employees or consultants.

An attorney can also assist you with registering and maintaining your intellectual property, as well as advise on any necessary enforcement actions, which are vital to policing and protecting your IP.

Beyond these tactical steps, an IP attorney can help provide strategic guidance for your organization as your brand grows and matures. The right time to engage an attorney for trademark and copyright work is often sooner than you think. An experienced attorney can help you develop a comprehensive intellectual property strategy that minimizes legal and financial risk while protecting the value of your most important brand assets.