COPYRIGHT vs. TRADEMARK vs. PATENT

COPYRIGHT vs. TRADEMARK vs. PATENT


Some people confuse patents, copyrights, and trademarks. Although there may be some similarities among these kinds of intellectual property protection, they are different and serve different purposes. 




What Is a Copyright? 


Copyright is a form of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly. 


The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress. 




What Is a Trademark or Servicemark? 


A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks. 


Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office. The registration procedure for trademarks and general information concerning trademarks is described in a separate pamphlet entitled "Basic Facts about Trademarks". 




What Is a Patent? 


A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions. 


The right conferred by the patent grant is, in the language of the statute and of the grant itself, "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. 


(Excerpted from General Information Concerning Patents, U.S. Patent and Trademark Office website) 


Some additional differences between a copyright and a trademark are as follows: 


1.   The purpose of a copyright is to protect works of authorship as fixed in a tangible form of expression. Thus, copyright covers: a) works of art (2 or 3 dimensional), b) photos, pictures, graphic designs, drawings and other forms of images; c) songs, music and sound recordings of all kinds; d) books, manuscripts, publications and other written works; and e) plays, movies, shows, and other performance arts. 


2.   The purpose of a trademark is to protect words, phrases and logos used in federally regulated commerce to identify the source of goods and/or services. 


3.   There may be occasions when both copyright and trademark protection are desired with respect to the same business endeavor. For example, a marketing campaign for a new product may introduce a new slogan for use with the product, which also appears in advertisements for the product. However, copyright and trademark protection will cover different things. The advertisement's text and graphics, as published in a particular vehicle, will be covered by copyright - but this will not protect the slogan as such. The slogan may be protected by trademark law, but this will not cover the rest of the advertisement. If you want both forms of protection, you will have to perform both types of registration. 


4.   If you are interested in protecting a title, slogan, or other short word phrase, generally you want a trademark. Copyright law does not protect a bare phrase, slogan, or trade name. 


5.   Whether an image should be protected by trademark or copyright law depends on whether its use is intended to identify the source of goods or services. If an image is used temporarily in an ad campaign, it generally is not the type of thing intended to be protected as a logo. 


6.   The registration processes of copyright and trademark are entirely different. For copyright, the filing fee is small, the time to obtain registration is relatively short, and examination by the Copyright Office is limited to ensuring that the registration application is properly completed and suitable copies are attached. For trademark, the filing fee is more substantial, the time to obtain registration is much longer, and examination by the Trademark Office includes a substantive review of potentially conflicting marks which are found to be confusingly similar. While copyright registration is primarily an administrative process, trademark registration is very much an adversarial process. 


7.   Copyright law provides for compulsory licensing and royalty payments - there is no analogous concept in trademark law. Plus, the tests and definition of infringement are considerably different under copyright law and trademark law. 


CLOTHING ITEMS 


When it comes to copyright v. trademark, we get more questions about clothing than anything else. Here are a few guidelines:


1.   Anything you silk screen or otherwise display prominently on the front or back of a shirt, top, cap or hat is generally considered artwork, and therefore covered by copyright. In fact, if you send a photo of a clothing item to the U.S. Trademark Office showing your design, logo or slogan prominently displayed on the front or back, they will refuse to register it as a trademark. 


2.   To qualify as a trademark, your logo or slogan must be used as the brand of the clothing item itself. In other words, your logo or slogan must be used the way clothing brands are typically used and displayed on clothing, namely, sewn into a waistband, collar, hem or pocket, or applied to a label, sticker or tag, and NOT in a way that dominates the appearance of the clothing item. 


3.   The caveat, of course, is that when your design, logo or slogan is regarded as artwork - even though it can be protected by copyright - the protection only extends to the artistic configuration used. To put it more bluntly, if you have a slogan or name, copyright law can protect the artistic way you display it, but the text itself is NOT protected. Copyright law does not cover names, words or short phrases. 


4.   The only way to protect a name, word, short phrase or other text, is to register it as a trademark. But this means that you have to change the way you use the mark from an artistic display to a brand name usage. 


5.   Yes, it is possible to register a design, logo, name or phrase under both copyright law and trademark law, so long as you use it in two different ways and you do it consistently. Keeping the two usages of the same design or text at the same time is not an easy task, and you can end up compromising your rights under copyright or trademark, or both, very easily if you aren't careful.