Understanding the Key Differences Between Trademarks and Copyrights

The difference between trademarks and copyrights is frequently misunderstood by business owners, much to their detriment. Don’t be one of those business owners that are in the dark about their intellectual property! This blog covers some basics.

What is a trademark? A trademark is a mark—a symbol, word, device, number—that is affixed to a product to identify the manufacturer of the product to the purchaser. The Nike swoosh is an excellent example of a trademark because the minute you see it, without any words or other context, you know exactly where the product came from—Nike. This is the fundamental purpose of a trademark (or service mark on services): to distinguish the manufacturers of the same kind of products from each other and allow consumers to make choices based on their knowledge of the brand.

The law limits what can constitute a “mark” for use on goods or services that are for sale. Marks can absolutely consist of words (even phrases), symbols, designs, numbers, a combination of any of these elements, and even sounds! U.S. trademark law also recognizes that colors and scents (but not perfumes) can stand as trademarks and thus be allowed protection. The other key element with a trademark is that the mark has to be used on specific goods or services that are being offered for sale in commerce.

What is a copyright? If you picture a Venn diagram with one circle representing trademarks and one circle representing copyrights, their overlap will be exceedingly small. This is also where a great deal of the confusion comes in since most people seem to think that trademarks and copyrights are interchangeable. This is not the case at all. While trademarks are used to sell goods and services, copyrights are designed to give protection to artists who create works of creativity including photographs, novels, architectural plans, and even software.

Essentially, a copyright is the right given to the author or original source of content for a limited amount of time to have the sole right to exploit, sell, display, perform, and share their work. Not everything is eligible to be copyrighted though. For example, while novels and stories are copyrightable, ideas for those stories are not. Phrases are also not eligible, but they can be for trademarks. Music, paintings, sculpture, photographs, etc. are all eligible.

The thing about copyrights is that they are only granted for a limited time. “Limited” continues to be extended by Congress, to continue to give protection to certain lucrative works that would otherwise age out of the system and into the “public domain.” When a work enters the “public domain,” it no longer has an owner and it is not infringement to copy it, share it, perform it, alter it, or do anything else with it. This is how Jane Eyre has been rewritten to include zombies nowadays.

For businesses, trademark and copyright are actually very important sources of value and should be treated as such. Remember, it is your trademarks that are selling your products and services. It is your copyrighted content on your website that is bringing in customers. Both are extremely important assets that need protecting.

It is always a good investment in your business to have a knowledgeable attorney evaluate your intellectual property portfolio and advise you as to how to protect it. The team at Trembly Law Firm can help you register, maintain, and protect your business’s intellectual property assets. If you have any questions or would like to register a trademark or copyright with the U.S. Patent and Trademark Office, please don’t hesitate to contact us.

Written by Brett Trembly

Brett Trembly

In the South Florida legal community, Brett sits on the Board of the South Miami Kendall Bar Association, the Florida Bar 11th Circuit Grievance Committee, volunteers on the Florida Bar Young Lawyers Division Mentoring Program, the Dade-County Bar Associations Rainmakers Committee, and annually volunteers for Miami-Dade County’s Ethical Governance Day.