What is a trademark? And how is it different from a copyright? By: Shannan de Jesús

Shannan 120If you have a creative side, or have recently opened a business, you might want to know how you can safeguard your hard work from others who may try to ride on your coattails or improperly copy your efforts. When you want to profit from your creative endeavors, protecting your intellectual property can be as important as protecting your personal property. “Intellectual  property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names, and images used in commerce.”[i] Below is a brief introduction to two kinds of IP: trademarks and copyrights, their differences, and how they might help protect you.

Trademarks

Trademarks can be found almost any place – on business signs (Sears®), restaurant menus (Big Mac®), drink labels (Coke®), home appliances (GE®), children’s toys (Fisher-Price®), and fashion accessories (Cole Haan®), to name a few. Basically, a trademark is a recognizable design used to identify goods or services. The legal definition of a trademark is “a word, phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from those of others.”[ii] In the marketplace, they are the bottle shape, lettering style, and colors that help consumers distinguish Coke® from Pepsi® before they have even tasted the two drinks. Recently, trademarks have also come to be sounds (the Intel Tune, MGM Lion, and Harlem Globetrotter’s theme[iii]) and smells. Have you stepped into a Verizon Wireless store recently? Was there a “flowery musk scent” when you walked in? That scent was registered with the United States Patent and Trademark Office (USPTO) on October 7, 2014, to help distinguish Verizon® from other communications retailers.[iv] A combination of the things that comprise a trademark may also be used to identify the goods or services you offer as belonging to you or your company, rather than your competitors.

Obtaining a trademark registration puts your home state – or “the world” if you acquire a federal registration – on notice that you are using your trademark and intend to defend and protect it from unauthorized use. Trademarks are critical to separating your goods and services from those of your competitors. If a customer tries your pizza and thinks it’s good, you want them to remember that they liked it and purchase it again. A trademark can help your customers quickly identify your pizza out of an entire aisle of frozen foods in the supermarket. In addition, your trademark helps your customers distinguish your tasty pizza from the inferior ones, just by looking at the package. Finally, a federal registration can pave the way for recovering damages against someone who may infringe on your rights in the future.

Before you start using your trademark, you should take steps to make sure that no one is using a mark like it – to make sure you are not infringing on someone else’s rights. An attorney who is familiar with trademark clearance searches can help you determine whether someone else is already using a trademark similar to the one you want to use. Why does it matter? Because anyone who is currently using a mark that is the same as or substantially similar to yours may oppose registration of your mark, may sue you for infringement, and may obtain an injunction requiring you to stop using your mark (potentially meaning a lot of time and money lost).

On the flip side, once you decide on the trademark you want to use, it is important to think about how to protect it. The easiest ways to protect your trademark are by registering and policing it. Trademarks may be registered within your state, nationally, and even in some other countries. Where you want your goods or services to be recognized is important when deciding where you should seek registration. If you are a small business owner and never plan to expand outside your state, you may want to consider only a state trademark registration. If you plan to “go big,” however, a federal registration may be right for you. Policing your mark means making sure that no one else is using your mark or one that is confusingly similar. It can also mean making sure that people aren’t unknowingly drinking Pepsi® when they asked for Coke® . Policing your mark is important for maintaining your registration and defending any future lawsuits. You can do this yourself, or an attorney can help you.

Copyrights

While trademarks are used to identify the source of a particular good or service, copyrights protect original artwork, books, songs, architecture, movies, choreography, computer software, and more. Copyrights protect how a creative idea is expressed, but not the idea itself. By definition, copyrights protect “original works of authorship fixed in a tangible medium of expression.”[v]  In other words, you cannot copyright your idea unless you put it in some form that can be touched and redistributed.

As an “author” (the creator of a work that can be copyrighted), you obtain a basic common-law copyright from the moment your work is “fixed.” However, only the parts of your work that are original will be covered. Multiple people can obtain basic copyrights in their own portrayals of the same subject. The predictable plot of a romantic comedy movie is not copyrightable, but (assuming no infringement has occurred) each writer’s individual movie script is.

In addition to owning the original work you have created, a copyright owner also has the exclusive right to control how the work is used: to reproduce it; create derivative works; distribute it; publicly perform or display a literary, musical, dramatic, choreographic, pantomime, motion picture, or other audiovisual work; and publicly perform a sound recording by means of digital audio transmission. This means, for example, you can write and play a song in public, but no one else can play your song without your permission. However, another musician may like your song, add their own style to it, and make it their “own.” You can create a bronze sculpture of a family, but another artist can legally create his or her own bronze sculpture of the family, too. This is why copyright registration is so important.

If you want to sue someone for infringing on your rights in the future, your work must be registered with the U.S. Copyright Office. Whether your work is registered with the U.S. Copyright Office also determines what damages you can recover if your lawsuit is successful. Additionally, not every country recognizes U.S. copyrights, so if you want to send your work abroad, you should check the Copyright Office circulars or consult an attorney to determine what your rights will be in other countries and how best to protect them.

Trademarks and copyrights can be instrumental in protecting both your business and your work product. If you are interested in securing a trademark or copyright, or have one that you need help with, contact the lawyers at Otis, Bedingfield & Peters, LLC today.

[i] http://www.wipo.int/about-ip/en/

[ii] Black’s Law Dictionary, 2d Pocket Ed.

[iii] http://mentalfloss.com/article/12341/8-sounds-are-trademarked

[iv] USPTO Reg. No. 4618936.

[v] http://www.copyright.gov/help/faq/faq-general.html#what

 

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