Oscar Wilde said, "Imitation is the sincerest form of flattery,” but there’s a fine line between imitation and outright theft.
Businesses and creative individuals invest valuable time and effort into creating original works and building brands. As a result, you want to protect that work and ensure you receive credit when it's due.
That’s where tools like trademarks and copyrights come in handy. You can use them to protect your brand and prevent others from capitalizing on your work. That being said, they’re not the same tool, and it’s important to know which one applies to you and your business.
What is a trademark vs. copyright?
Both trademarks and copyrights are forms of intellectual property law, but they protect different things and are used for different purposes.
Trademarks are used to protect the elements of a company’s business and brand identity, such as brand name, logo, product names, and slogans. A copyright protects original works created by the author, including literary works, artistic works, dramatic works, music, and designs.
“Trademarks protect who you are, and copyright protects what you do,” says Alex Mastin, CEO of coffee company Home Grounds. Trademarks are intended to protect a brand’s identity, while copyrights protect original work, whether it’s created by a company or an individual.
A trademark is a legal protection that business owners use to safeguard their company’s name, products, and elements of the brand identity. Having a registered trademark helps prevent other companies from launching a business in your industry with the same or similar branding.
What does a trademark protect?
The United States Patent and Trademark Office (USPTO) defines a trademark as “any word, phrase, symbol, design, or a combination of these things that identifies your goods or services.” As such, a trademark can protect:
- Your brand name
- Visual design elements (such as color schemes and product packaging that identify your brand)
- Product names
If you trademark your business name, you are established as the official source of products and services that use the name. You also have the right to sue other companies for trademark infringement, which is any unauthorized use of your trademark, such as opening a business that sells the same products under the same name.
Business owners should consider applying for trademarks as soon as they are using their unique marks (logo, brand name, slogan, product line names). You don’t want another company copying you and securing the trademark before you do. If that happens, you’ll be the one that has to change your branding.
Companies can have hundreds of trademarks, protecting variations of their products, logo, and branding. Here are some examples of trademarks held by iconic brands.
Coca-Cola’s trademarks include:
- Company name, logo, and logo variations
- Subsidiary brand names including Sprite, Dasani, and Fanta
- Logos such as “Taste the Feeling” and “Pay Like a Boss”
Nike’s trademarks include:
- Company name, logo, and logo variations
- Product names like Air Jordan and Air Trainer Max
- Product feature names such as Dri-Fit and Therma-Fit
- The name of the brand’s outlet store, Nike Factory Store
How to obtain a trademark
You can obtain a trademark by submitting a trademark application to register it with the US Patent and Trademark Office. You can use the Trademark Electronic Application System (TEAS) to submit your application online.
If it’s available, you can go ahead and submit an application along with the registration fee. This fee starts at $250 for each class of goods or services and is nonrefundable. The USPTO estimates the trademark registration process can take 12 to 18 months.
That being said, there’s no guarantee that your trademark application will be approved. The USPTO may deny the application or request you make changes if it’s too similar to an existing active trademark.
You can also proactively register a trademark if you’re planning a new company or product line. If it’s accepted, it becomes active once you start using it to conduct business.
How long does a trademark last?
Trademarks do not have a defined expiration date. Instead, a trademark lasts as long as its owner continues to use it. To maintain and continue using a trademark, you need to send proof of use to the US Patent and Trademark Office every five years.
A copyright is a form of intellectual property that protects original works by giving the author of the work the sole right to display, distribute, copy, adapt, and perform the creative work.
What does a copyright protect?
Copyrights protect original works of authorship, including:
- Literary works such as poetry, fiction, nonfiction, computer programs, and advertising copy
- Musical compositions, songs, and lyrics
- Artistic works like paintings, graphics, and sculptures
- Films and other motion pictures
- Plays, monologues, and musicals
- Sound recordings
- Architectural work
Copyrights do not protect the following:
- Ideas, concepts, discoveries, or procedures (those are covered by patents)
- Work that’s not in a tangible form, such as the idea for a film that hasn’t been created
- Titles, names, and short phrases
- Familiar symbols or designs, such as an exit sign or stop sign
- Lists of ingredients
Both individuals and businesses can have rights to copyrighted material. Examples of individual copyright would be the images that a photographer takes and publishes. For businesses, copyrights cover original work, such as website copy, blog posts, and commercials.
How long does copyright last?
In general, copyrights for works created after Jan. 1, 1978, last for the duration of the life of the author and continue on for 70 years afterward. Once the 70-year period is over, the work goes into the public domain, which refers to creative works not protected by intellectual property laws.
If you want to learn about copyright protection periods for works created before Jan. 1, 1978, you can review the US Copyright Office’s guide for copyright duration.
For anonymous creators, work published under a pseudonym, or work made for hire, the copyright is either 95 years after it was published or 120 years after it was created. The duration of the copyright is whichever deadline occurs first.
For instance, say someone writes a book anonymously in the year 2000, and the book gets published in 2030. The two potential expiration years are 2120 (120 years after it was created), or 2125 (95 years after it was published). The earlier year, 2120, will be the copyright expiration year for that book.
Understanding works made for hire
Business owners should understand the “works made for hire” doctrine, which is what happens when the copyright ownership belongs to an employer or commissioner as opposed to the creator.
As an employer, you own the copyright to your employees’ work if they created it as part of working for you. You also own the right to work that you hired an independent contractor to create for you.
While work made for hire is an automatic transfer of ownership, it’s helpful to get it in writing. You can ask your employees (or contractors) to sign a work-made-for-hire agreement to avoid any future conflict.
How to obtain a copyright
Unlike trademarks, which have to be registered with the state or federal government, copyrights exist the moment an applicable work is created. In other words, once you create something, it’s yours.
Still, if you want to protect your work against copyright infringement, you should register it with the US Copyright Office.
Registering your work with the Copyright Office essentially establishes you as the author and owner of the work, and it’s required if you want to sue anyone who distributes or uses it without your permission.
To register a copyright, you must submit a completed application, filing fee, and a deposit. Copyright fees vary depending on what you are copyrighting and whether you file an electronic or paper application.
Fran Haasch, attorney and founder of Fran Haasch Law, recommends businesses and creative professionals register copyrights for their work.
“Copyright technically exists from the moment a piece of work is created; however, this can be difficult to prove without registration,” she says. Having an official copyright registration provides legal protection and helps prove your case if someone else infringes on your ownership rights.
Another way to protect your work is by publishing a copyright symbol followed by your name (or brand name). This makes it clear to viewers that you are the sole owner of the work.
It’s not required, but it can be helpful if you end up filing legal action. The symbol demonstrates that you clearly showed ownership of your materials.
Differences between trademark and copyright
Intellectual property protection is especially helpful for entrepreneurs trying to establish a brand presence. To fully safeguard your brand’s identity, it’s important to know when to use trademarks vs. copyrights.
Since copyrights don’t apply to titles, you need trademarks if you want to protect brand and product names. Furthermore, trademarks must be applied for, while copyrights are technically automatic.
However, it’s still helpful to register a copyright for creative works, which publicly registers you as the owner and gives you a stronger legal claim in case someone uses your creations without permission.
Once you understand the differences, you can take proactive actions to protect the brand and the products you worked hard to create.