Understanding the difference between copyright and trademark is crucial when protecting your intellectual property. A common misconception is that if you have a copyright registration, it automatically grants you the ability to secure a trademark. However, this isn't the case, as copyright and trademark are two distinct forms of legal protection.
Understanding these concepts is essential for a creator or entrepreneur navigating the complex intellectual property landscape. It will enable you to formulate a robust strategy for protecting your creations and ensure you adequately secure your brand's identity.
Understanding Copyright
Copyright is a form of protection given to the creators of "original works of authorship," including literary, dramatic, musical, artistic, and other creative works. This protection is available to both published and unpublished works and aims to prevent unauthorized use or distribution.
Copyright protection requires three elements, authorship, which means that a human being is the creator of the work (AI-generated works are not protected by copyright); fixation, the work must have some permanency to be perceived by the senses and be accessible or recorded in a tangible medium, and originality, the work must be the result of the personal efforts of its creators (if you copy another's work it is most likely not protected by copyright).
The key aspects of copyright include:
- Protecting the expression of an idea, not the idea itself.
- Automatically securing rights upon creation of the work in a tangible form.
Providing exclusive rights to reproduce, distribute, perform, display, or license the work
Finally, it is worth noting that copyright protection is intended to recognize and compensate creators and artists for their work and promote the arts and sciences. This purpose, in addition to the other elements of copyright, differentiates copyright from trademark law.
Understanding Trademarks
A trademark, on the other hand, is completely different. A trademark is a symbol; it can be any word, name, figure, animation, device, or any combination of these, used or intended to be used in commerce to identify and distinguish products or services in the marketplace. In contrast with copyright, trademark law has two main goals: to protect and compensate the goodwill of market participants who have made efforts to differentiate themselves in the market and to protect the consumers against deception and confusion.
In the US, two elements are necessary to enjoy the protection of trademark law: the use of the trademark in commerce and the registration of the trademark before the United States Patents and Trademark Office (USPTO).
Similar to copyrighted creative works, trademarks must be original. However, two precisions are necessary: First, similar trademarks may be protected if used to identify or distinguish different and unrelated products or services, and second, the comparison between two trademarks to establish protectability depends on the likelihood of the two trademarks causing consumer confusion.
Additionally, suppose two market participants independently select the same trademark (let's say, a figure or logo) to distinguish similar products in the market. In that case, the first one to use in commerce has priority. In contrast, under copyright law, two pieces of art (or any other creative works), even if highly similar, if created independently, are both entitled to the same degree of protection against unauthorized use.
Copyright Does Not Equal Trademark
Having a registered copyright does not mean you can automatically secure a trademark for the same content. These are separate and independent forms of intellectual property, and their protection has different requirements. To illustrate, while registration of a creative work, for purposes of copyright, is completed before the United States Copyright Office, a trademark application is filed before the United States Patents and Trademark Office.
Moreover, the registration of a creative work before the US Copyright Office has evidentiary effects and entitles the author to attorney's fees and statutory damages in case of litigation. However, the registration of a trademark has the effect of creating a protectable trademark interest. Additionally, the use or display of a creative work is independent of the copyright interest, which exists automatically from its creation. A trademark, in contrast, must be used in commerce. Otherwise, it may be considered abandoned and free to be appropriated by another.
Conclusion
In conclusion, copyright protection does not equate to the ability to secure or defend a trademark. Copyright and trademark law protect different forms of intellectual property, serve different purposes, and require separate application processes. Always consult a legal professional experienced in intellectual property law to protect your assets properly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.