What Is a Trademark?
A Trademark (or Service Mark) is a word, name, symbol or device which is used in commerce in connection with goods or services to indicate the source of those goods or services, and to distinguish them from the products or services of others.
Trademarks are typically used to prevent others from using confusingly similar marks, in order to protect consumers from becoming confused as the source, affiliation, sponsorship or endorsement of the competitor’s product or service.
While federal registration is not necessary, trademarks and services marks actually used (or intended to be used) in interstate commerce may be registered with the Patent and Trademark Office, often called the “PTO.”
Trademark rights in the United States arise from actual use in commerce. They cannot be reserved, except when the marks are going to be used in commerce in the near future.
Trademarks do not need to be registered in order to be protectable. However, federal registration of a trademark confers benefits that often make it a worthwhile investment if the mark is going to be used for any significant project.
What Is a Copyright?
Copyright is a type of intellectual property protection provided to the authors of original works of authorship including literary, dramatic, musical, artistic, and certain other works, both published and unpublished.
The US Copyright Act grants the owner of a copyright the exclusive rights to reproduce the copyrighted work, to create derivative works, to distribute copies of the copyrighted work, to perform the work publicly, or to display the work publicly.
Copyrights cover: (a) works of art (2- or 3-dimensional), (b) photographs, pictures, graphic designs, drawings and other forms of images; (c) songs, music and sound recordings of all types; (d) books, manuscripts, publications and other written works; and (e) plays, movies, shows, and other performance arts.
Copyrights protect the specific and particular form of expression rather than the idea itself. For example, a description of a garment could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from copying the garment itself.
There are many times when multiple types of intellectual property protection are helpful with respect to the same project.
For example, a marketing campaign for a new product may introduce a new slogan for use with the product, which also appears in written advertisements for that product.
The advertisement’s text and graphic will be covered by copyright – but this will not protect the slogan per se.
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 would have to seek for both types of protection separately.
Copyrights are registered in the Copyright Office of the Library of Congress.
If you are interested in protecting a title, slogan, or other short word phrase, generally you want to file for a trademark.
Copyright law would not protect a simple phrase, slogan, or name.
The registration processes and costs involved in copyright and trademark are entirely different.
For copyright, the filing fee is small, the time to obtain registration is relatively modest, and examination by the Copyright Office is limited.
For trademarks, the filing fees are greater and the time to obtain registration is much longer.
Further, examination by the Trademark Office includes a review of potentially conflicting marks which may be confusingly similar.