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Understanding the Difference Between Trademarks and Copyrights

If you were to create a Venn diagram showing the similarities between trademarks and copyrights, there would be virtually no overlap, despite the two terms often being used interchangeably. This is because trademarks and copyrights are two very distinct forms of intellectual property, each of which serves a very specific purpose. One is designed to protect original works of authorship and the other is to ensure that consumers have reliable identification of the brand they are purchasing.

Copyrights have a leg up on trademarks in one important area: the copyright is actually in the Constitution. Article 1 Section 8, Clause 8 of the Constitution allows authors to have, for a limited time, the exclusive right to their “respective writings.” From 1787 to today, the copyright clause has been helping authors take advantage of their exclusive rights in their works for that limited period of time. The current law, enacted in 1978, grants copyright protection to any original work of authorship that is “fixed in a tangible medium of expression” for a period of time. An original work of authorship includes typical works such as books, stories, and other written materials (but not phone books – there is no originality in a phone book). Other works that can qualify run the gamut from software to architectural drawings to sculptures to photographs to digital sound recordings. Notably, phrases or a single word or design are not usually subject to copyright protection because they lack originality.

The “limited time” granted under the copyright law is not actually very limited. An author can expect protection for their lifetime plus 70 years. Other works can be protected for 120 years. During that period of time, the author is endowed with six exclusive rights to exploit their work. These include the right to display the work in public, the right to perform the work in public, the right to make copies, and the right to distribute those copies. Unless the author grants these rights to someone else, anyone who exercises one of these rights without permission is committing copyright infringement.

Trademarks, on the other hand, are not enshrined in the Constitution.   In fact, trademark law did not truly evolve until 1946. It also does not have a period of exclusivity nor does it only cover original works of authorship. However, trademarks have the potential to live far longer, provide a broader scope of protection and be far more lucrative than a copyright. This is because a trademark is a mark – symbol, design, phrase, word, color, even sound – that when used to sell a good or service becomes practically synonymous with that good or service and thus the law provides a broader scope of protection than copyright which protects only the actual artistic creation. Trademarks can live eternally provided the same mark is used to sell the same goods or services through those centuries.

Trademark users have different rights than copyright. Many of the trademark disputes that arise come from two entities choosing very similar names for a mark to be used on the same or similar goods. Depending upon how closely those names and/or products are to each other, the charge of infringement may not be too far behind. Except here, infringement means that the names and/or products are too similar such that they could cause consumer confusion. The sole purpose of a trademark is to provide a source indicator to consumers to let them know who they are buying a product from. Consumers want the genuine article and trademarks are the most efficient way to do this.

You’ve gotten a glimpse into why trademarks and copyrights are different, but also why they are each vitally important to any business owner. You have copyrights and trademarks in your business now – how are you protecting them? No matter your answer, you need to have experienced and knowledgeable counsel, like the firm of EmergeCounsel, on your side to help you make the most of your intellectual property and give it as much protection as possible. Contact us to get started today!