Trademark and copyright are two very popular and common legal terms—you’ve likely seen the symbols ™, ®, or © affixed to various brand names, logos, or titles. They are often confused for one another, but trademark and copyright serve distinct purposes. It’s important any small business owner has a basic understanding of their differences and similarities. Although both offer protection of so-called intellectual property, what they protect and how makes them very different legal tools.
What is a trademark?
A trademark is a symbol, word, or combination of words used to represent a business entity, product, or services. The ™ symbol refers to a trademark established through consistent use by a business. The ® symbol stands for a federally “registered trademark,” and refers to trademarks that have been formally registered with the United States Patent and Trademark Office (USPTO). Using someone else’s trademark without their permission is known as trademark infringement and can lead to litigation.
How long does a trademark last?
A trademark theoretically lasts for as long as the holder uses it in ordinary commerce. However, simply using the trademark is not sufficient to demonstrate continuous, ordinary use. A trademark holder must file a Section 8 declaration every 10 years from the date of registration, demonstrating that the trademark remains in use. Failing to file a declaration will result in the trademark being deemed “dead,” which means another party can claim and register it.
A trademark can be applied to your small business’s name, logo, custom-designed symbols, and even some marketing phrases. Examples of trademarks include:
- Brand names: Coca-Cola, Facebook, Levi’s.
- Brand symbols: McDonald’s signature golden arches, the Nike swoosh.
- Brand slogans: “Just do it,” “America runs on Dunkin’,” “Let’s get ready to rumble!”
How to register a trademark
To register a trademark (®) for your small business, you should prepare a trademark application, ideally with the assistance of a trademark and patent attorney. Because trademarks must be sufficiently unique and distinctive, you should search the USPTO’s Trademark Electronic Search System (TESS) to ensure the words, marks, or combination you want to register are available. (“Dead” trademarks, or trademarks that have not been properly maintained by their holders, are available for you to claim and register.) Once you’ve identified a unique word, mark, or phrase, you can file a trademark application that includes:
- Name and address of the applicant
- Citizenship and legal entity of the applicant
- Name and address for future correspondence, if different from the mailing address of the applicant(s)
- A drawing of the desired mark (not necessary if you are only applying for a name or certain words)
- A thorough description of the mark
- A list of services or goods covered by the trademark application
- The class of services or goods (the USPTO maintains a list of classes and their associated codes)
- An example of the mark in use
- The date the mark was first used
- A dated signature (this can be from you or an authorized representative, such as a trademark lawyer)
- A fee, which ranges from $225 to $625, depending on the type of trademark
Once you have completed the application, you can submit it either through the Trademark Electronic Application System (TEAS), which offers two versions: TEAS Plus and TEAS Standard. The TEAS Plus option is generally simpler to navigate and less expensive, and has a lower rate of rejection—but it is only available to applicants whose trademark is associated with goods or services described and listed in the Trademark ID Manual. If the goods or services associated with your trademark are not listed in the manual, you must use TEAS Standard, which requires you to give a custom description of your trademark.
What is copyright?
Copyright law serves to protect more extensive creations than a mark or slogan. It means the copyright owner of a given creative work has exclusive rights to display, distribute, reproduce, or perform the work—and may be entitled to compensation when others borrow from or reproduce aspects of the work.
Copyright is outlined in the US Constitution, and commonly is known as the “copyright clause.” Because those who founded and outlined the US legal system recognized the importance of protecting the rights of authors and creators, copyright is widely considered to be one of the most important American legal inventions, and it now governs intellectual property protection worldwide. Movies, TV shows, songs, books, and even social media content can be subject to copyright. Copyright protection exists for the life of the author or creator of the work, plus 70 years. After that point, the work enters the public domain and is freely usable by all.
Examples of copyright
Examples of copyright can include:
- Original works, such as the designs underlying a product, like a piece of clothing or furniture.
- Literary or artistic works, such as a book, a sound recording, a photograph, or graphic design.
- Intellectual works, such as software or even pieces of computer code. Even the content of your small business’s website, if you produced it, can enjoy copyright protection.
The copyright symbol, sometimes appearing in the first few pages of books, or on certain protected images, is ©. Unauthorized duplication or use of copyrighted material is called copyright infringement.
How to register a copyright
As with a trademark, it often makes sense to work with an attorney on copyright registration, though it is possible to complete and file the application yourself.
US intellectual property law deems that only works considered original and “fixed in a tangible medium expression,” either in print, film, or online, can qualify for copyright. Once you have established that your work meets these basic requirements, you must submit three things to the US Copyright Office:
- A completed application form. You can do this online in most cases, or mail in a paper form. Online applications cost less and take less time to process than paper versions.
- A filing fee. Electronic filing fees are $45 for a single author and one work, and $65 for a standard application. The paper filing fee is $125. A copyright lawyer can help you determine which additional fees listed in the US Copyright Office’s website you may need to pay.
- Copies of the work. The number of copies will vary depending on the type of work you are seeking to protect.
Trademark vs. copyright
Although trademark and copyright law share some features because they both reside in the general realm of intellectual property protection, some major differences set them apart.
What are the similarities?
Both trademark and copyright offer some degree of long-term protection for your creation, barring others from unauthorized use of your intellectual property.
What are the differences?
Although a trademark protects items such as words, logos, design elements, and even certain phrases or slogans that might define your business’s brand, copyright protects more elaborate creations you or your business may produce. These can include designs for a product, literature, artwork, photographs, or video content.
When do you need a trademark vs. copyright?
Businesses often use trademarks to protect brand identity and goodwill. This includes assets associated with logos, certain unique design elements to that logo, and even some distinct marketing or branding language such as identifying slogans. If your business has a close competitor with which it shares certain stylistic branding elements, you may want to trademark your logo or business name so that customers don’t confuse the two. Likewise, a registered trademark gives you pathways to legal remedies if a competitor copies some or all of your branding to lure away your customers.
You may need copyright protection instead of trademark protection if your business has produced in-depth creative works, such as business literature, video content, or an artistic work of some kind. Similar to trademark protections, copyright provides legal recourse if someone misappropriates your work for their own profit.
Trademark vs. copyright FAQ
Is it better to copyright or trademark a logo?
It is better to trademark a logo because copyright is typically reserved for works of greater complexity, such as a work of art, book, or song.
Does a trademark override a copyright?
A trademark does not override copyright because they are intended to protect different types of works and creations.
How long does a trademark last?
Trademarks persist for as long as the trademark holder continues to use the mark, name, design element, or slogan. If it falls out of use, the trademark may be designated as “dead,” and become available for federal trademark registration by another party.
Can I copyright my business name?
You cannot copyright a business name because copyright protections don’t extend to titles, slogans, short phrases, or logos.
Can I trademark my business name?
You can trademark your company name, as well as any logos, design elements, or marketing phrases unique to your brand.