Comparatively Speaking: Copyright vs. Trademark

Nov 29, 2011 | Contact Author | By: Anthony J. O'Lenick Jr., Siltech LLC
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Title: Comparatively Speaking: Copyright vs. Trademark
  • Article

While both a copyright and a trademark are intellectual property that will be encountered by the formulator, they protect fundamentally different rights. The two stand separately in law, and one does not preclude the other.

Copyright

Copyrights protect the expression of an idea as provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic and certain other intellectual works. This protection is available to both published and unpublished works.

A copyright gives the owner the following exclusive rights.

  • The author may reproduce the work in copies or phonorecords; prepare derivative works based upon the work; distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease or lending; and perform the work publicly, in the case of literary, musical, dramatic and choreographic works, pantomimes, motion pictures and other audiovisual works.
  • The author may display the copyrighted work publicly, in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.
  • In the case of sound recordings, the author may perform the work publicly by means of a digital audio transmission.

The exclusive right of the copyright cannot be used against one who independently creates an identical work. Sometimes both a patent and a copyright may be applied for on different aspects of the same work. An example is a computer which may have a patent that protects the hardware and a copyright that protects the program to operate the computer. The current term of a copyright in the United States is 50 years after the death of the author or of the last author if more than one author exists.

Trademark

Trademarks are any word, name, symbol or device used by an individual or corporation to distinguish its product from others. A trademark only prevents use of the trademark not of the invention. A trademark must be distinctive and not merely descriptive or generic. Apple successfully functions as a trademark for computers but is generic to that fruit. Sometimes a trademark becomes generic and is lost. Elevator and escalator were once trademarks, which eventually came to describe the product rather than to identify the source of the product.

Trademarks in the United States have an original term of six years and can be renewed for up to 20 years from the date of issue, by filing the appropriate forms and paying the appropriate fees. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product.

A trade name is not the same as a trademark. A trade name is a name owners use to identify their businesses while a trademark is used to identify a good or service a business provides. Another distinct difference is that "trade names" are not registered at the state or federal level. A trademark needs not be registered to establish rights in a mark based on legitimate use of the mark. Use is what establishes the rights. However, owning a federal trademark registration establishes constructive notice to the public of the registrant's claim of ownership of the mark; establishes a legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration; and establishes the ability to bring an action concerning the mark in federal court.