4 Key Differences Between Copyrights and Trademarks

There are a lot of similarities between copyrights and trademarks. Both provide legal protection for your right to use and reproduce intellectual property (IP). Certain property, in fact, can sometimes be protected by both a copyright and a trademark at the same time.

However, in order to properly leverage your rights and ensure your IP is effectively protected, it is important that you understand how to differentiate between these two protections. Below we have outlined four key differences between copyrights and trademarks that you should know and understand.

1) Assets Protected

The most obvious and substantive difference between a copyright and a trademark is the actual assets that are protected by each. Generally speaking, copyrights protect various works of original authorship. They are geared towards tangible, artistic works. Trademarks, on the other hand, protect things that help identify a company’s brand. We have provided some examples of each below:

Examples of copyrightable works – songs, literary works, a blog, a printed image, a play, etc.

Examples of potential trademarks – a company logo, a color scheme, a slogan, a business name, etc.

2) Duration of protection

Copyrights are usually effective for the duration of the life of the author or creator of the work, plus another 70 years following his or her death. Trademarks remain in effect for a period of 10 years, but they can be renewed indefinitely so long as the owner of the trademark stays up to date on all maintenance paperwork and the trademarked property remains distinctive, in use, and relevant.

3) When protection takes effect

Copyrights are automatic. They take effect as soon as the intellectual property is created. Technically, there is no need to officially register a copyright with the US Copyright Office, although you must do so if you want to have any reasonable grounds to sue an individual or entity for violating your copyright. Trademarks, however, are much more complex. In order for trademark protection to take effect, the owner must prove that the intellectual property is in use and is distinctive from other trademarks, and then the trademark must be registered with the US Patent and Trademark Office. Trademark protection is not automatic like copyright protection.

4) Infringement Test

The standards that are utilized to weigh whether an intellectual property protection has been violated or infringed upon vary significantly between copyrights and trademarks. In order to demonstrate that a copyright has been infringed upon by another individual or entity, one must show that there is a “substantial similarity” between the two works. Thus, the works do not have to be exactly alike in every way, only similar enough to demonstrate that the original work was clearly copied. For example, if you wrote the music and lyrics for a hit song, and someone else later wrote a song with the same music and different lyrics, it would still be copyright infringement because the music was substantially similar to your original work.

The standard for testing trademark infringement is much more complex, but generally speaking the court will weigh a potential customer’s “likelihood of confusion” between the original trademarked property and the property alleged to have copied it. There are many other factors, however, that are considered when testing for trademark infringement, such as the intent of the defendant, the similarity between the goods being sold, and the strength of the original trademark.

Intellectual property protections are vital to the success of most businesses, and those operating within the arts and entertainment industry in particular. However, IP law can be incredibly complex, and you should always enlist the services of a skilled IP attorney to help you create and defend the protections your art and your business need. Contact Calevoso Law today and let us help ensure your rights to your intellectual property are always kept safe.

Written by CALEVOSO LAW