If your business has a brand—a website, merchandise, an identity—you may have valuable intellectual property and not even know it.
In fact, your brand can be just as relevant to your bottom line as your revenue numbers if you nurture it correctly. And if you don’t?
Well, you can only imagine what happens if someone else starts using your company name and identity without your permission.
That is where knowing the difference between copyright vs. trademark can save you a lot of time and money.
In this blog post, the Massingill team will explain the difference between copyright and trademark and why both are so important to your business.
We will help you identify your intellectual property rights to best protect yourself and your brand.
To get in touch with an Austin, Texas business attorney of the Massingill team, please contact us online or call (512) 410-0343 to get started.
What Does a Copyright Protect?
Copyrights protect creative works. For many businesses, this includes their marketing materials, like blog posts and content or software and source code.
In general, creative works can include:
- Original creative writing,
- Art in any medium,
- Original research,
- Written and performed songs,
- Other forms of audio and video materials,
- Computer software and source code, and
- Many more types of creative works
Once you create something, as long as it is original or retains some significant amount of original work, you may be able to copyright it.
A copyright “attaches” only once your creative work is fixed in a tangible medium.
This means that your words or ideas need to be put on paper or recorded to be copyrighted. Works that are not in a tangible format cannot be copyrighted.
As we will discuss below, this is one significant difference between trademark and copyright.
Ways to Protect Your Copyright
Because copyrights and trademarks protect different types of creative works, the ways to protect a copyright differ slightly from how you would protect a trademark.
Marking
One way to protect your copyright is to physically mark all of your work. Businesses often do this with electronic signatures or watermarked documents.
This method is typically impractical for businesses with more than a few copyrights. Other, more modern ways to mark include physically putting the © symbol on documents.
Creators and businesses can also offer Creative Commons licenses and mark their documents accordingly.
General Copyright
Also known as a “poor man’s copyright,” this is the practice of sending a dated, certified copy of a work to yourself.
By not opening the envelope, you may be able to establish how long the material has been in your possession.
However, there is no provision under US law recognizing this type of copyright.
Register Your Copyright
It is not required to register your copyright with the U.S. Copyright office. However, it is the strongest way to protect your intellectual property rights. You will have to complete the application process.
Contact a member of the Massingill team to get started on your copyright application. We can help move your brand forward and protect your IP.
What Does a Trademark Protect?
A key difference between a copyright and a trademark is that a trademark does not have to be “fixed” in a medium.
A trademark is a word, a name, a scent, a symbol, or a sound used to identify your business.
For instance, you may think of the broadcast network NBC every time you hear the sound of three chimes. The chances are that sound has trademark protection.
A business can acquire trademark protection through the ordinary use of the mark in commerce. These rights are usually limited and geography-specific.
State and federal trademark registrations can better protect your rights.
Ways To Protect Your Trademark
One of the best ways to protect your trademark is to hire a trademark lawyer to assist in trademark registration.
An experienced lawyer can help you search to ensure that your mark is not already in use and fill out a trademark application with the U.S. Patent and Trademark Office (USPTO) website.
Trademark vs. Copyright: A Summary Of The Differences
We have covered a lot of tricky issues in the confusing topic of trademark vs. copyright. Some important points we have discussed include:
- Trademark law protects your brand. A trademark sets your products and services apart from others in the marketplace. A copyright protects an original creative work, regardless of whether it represents a brand.
- If you can see, touch, hold, hear, or taste something, it may likely be a copyrightable product. On the other hand, the actual use of a word or idea in commerce may give rise to a trademark.
- Both trademarks and copyrights identify and protect works that bring original ideas and products to the marketplace.
- A trademark lasts as long as you use it in commerce and file renewals as required. Copyright expires after a fixed time (usually, the life of the creator plus 70 years).
The process for registering a copyright vs. trademark is very different. An experienced IP lawyer can make all the difference.
Contact Massingill today to discuss how we can help you protect your business and your IP.
FAQs About Trademarks and Copyrights
How Do I Know If My Business Needs a Trademark or Copyright?
Deciding whether your business needs a trademark or copyright depends on what aspect of your brand or product you want to protect. Here’s how to determine which type of protection is suitable for your business:
- Trademark: If you have a unique brand name, logo, slogan, or other identifiers (such as a specific color or shape) that distinguish your goods or services in the marketplace, you need a trademark. Trademarks protect brand identity and prevent others from using similar marks that could confuse consumers.
- Copyright: If your business creates original works of authorship, such as marketing materials, written content, software, artwork, or music, you need copyright protection. Copyright protects the expression of creative ideas, regardless of whether those ideas represent your brand.
If your business has both creative works and distinctive branding, you may need both trademark and copyright protection.
How Long Does Trademark or Copyright Protection Last?
- Trademark Protection: A trademark can last indefinitely as long as it remains in use in commerce. To maintain trademark protection, you must file for renewals with the U.S. Patent and Trademark Office (USPTO) every 10 years. If you stop using your trademark in commerce, its protection can lapse.
- Copyright Protection: Copyrights last for the lifetime of the creator plus 70 years (for works created by individuals). If the work is created by a corporation or as a work-for-hire, copyright protection lasts for 95 years from the date of publication or 120 years from the date of creation, whichever is shorter. After the protection period expires, the work enters the public domain and can be used by others without permission.
What Should I Do If Someone Infringes on My Trademark or Copyright?
If someone infringes on your trademark or copyright, it’s important to take action to protect your intellectual property:
- Document the Infringement: Gather evidence of the infringement, including screenshots, dates, and descriptions of how your trademark or copyright is being used without your permission.
- Contact the Infringer: You can first reach out to the person or business infringing on your intellectual property. A polite cease-and-desist letter can often resolve the issue without the need for legal action. This letter formally requests that they stop using your trademark or copyrighted work.
- Consult a Lawyer: If informal resolution fails, consult an intellectual property attorney who can guide you through the process of enforcing your rights. A lawyer can help you assess the situation, send a stronger legal demand, or file a lawsuit if necessary.
- File a Claim: If the infringement continues or escalates, you may need to take legal action. This could involve filing a trademark infringement lawsuit or a copyright infringement case in court, depending on which rights have been violated.
Taking swift action can help prevent further unauthorized use of your intellectual property and protect your brand or creative work.
Contact our business attorneys today
Protect Your Business: Let Massingill Handle Your Copyright and Trademark Needs
Copyrights and trademarks are often the first thing people see about your brand.
But simply owning the marks or the rights does not always adequately protect you and your business from infringers and from serious intellectual property theft and harm.
The trademark and copyright process can be complex and even overwhelming.
The business law attorneys at Massingill are client-focused and laser-focused on making challenging processes seem simple.
Contact us online or call (512) 410-0343 today to understand how we can help you protect your intellectual property.
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Joshua Massingill
Joshua Massingill is an attorney practicing in Austin, Texas. He serves on the Texas State Bar’s Law Practice Management Committee, the Leander Educational Excellence Foundation (LEEF) Board of Directors, and the Success-Werx Board of Advisors. He mentors young entrepreneurs in Leander ISD’s INCubatorEDU program and is active in his church.
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