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The Difference Between a Trademark and Copyright


A trademark speaks to your branding. This can be any word, phrase, symbol, etc. that identifies the source of a good or a service in commerce. Let me use McDonald’s® as a good example. The word “McDonald’s” is a trademark. We call this a standard character text trademark and it would be on its own USPTO trademark application if you wanted a federal registration for it. The Golden Arches is a logo, but this too is serving as a trademark. We refer to this as an image or stylized trademark. This is the case whenever you are claiming creative aspects like design, color, graphics, etc. This would also go on its own separate trademark application. The phrase “I’m Lovin It” is a tagline or sometimes called a slogan. This is treated as its own text trademark. The term “McNuggets” is a product name and also a standard character text mark as is the term “Big Mac;” you get the idea…

Each text trademark you employ should always be properly cleared through comprehensive trademark due diligence. Before you invest in any trademark make sure you get some legal guidance upfront. It is of course best practice to clear it before you start using any trademark and starting with a strong one is your best strategy. Know as well that merely registering your business name with a state or county agency or acquiring a domain does not convey any right to use that name in commerce as a source identifier or trademark. For example, I can presumably register my new tech start up “Boogle” with the NYS Secretary of State because there is no other business already doing business there under that name, but this does not mean that I would not be infringing on the Google® trademark, which I would be. The onus is on you to ensure the name you choose is not a problem.

Your trademark will be one of if not the most important and valuable business assets you will have and you will ultimately spend more money in support if it than you will anywhere else (advertising, marketing, PR, branding, packaging, etc.). So you owe it to your business and yourself to make sure you handle this properly upfront and the first order of business always starts with a proper and comprehensive clearance.

Whenever you endeavor into investing in a trademark it is very important that you conduct the proper clearance due diligence on all the text names upfront and before you start spending any money in support of it or submit an application to the USPTO. In the US, this means searching under both federal (USPTO) as well as common law because trademark rights stem from use in this country NOT registration. This means that acquiring a federal registration does not necessarily mean that you are not infringing on another’s intellectual property.

That said, where does copyright fit in to all this? Copyright protection speaks to creative expression. This will be things like written literary works, sound recordings, video content, graphic designs, photographs, etc. Since 1978 in the United States any creative expression will be covered by copyright law automatically. This means you do not have to take any specific action like post a notice or file a formal registration in order to receive protection. But if you want to ensure maximum enforceability then you must register the work with the US Copyright Office so to perfect your bundle of federal rights like the right to access the courts, the right to ask for statutory damages (sometimes the only damages worth bringing the case over), the right to attorney fees, etc.

In some cases we see an overlap with trademark and copyright. Using my McDonald’s example above, the Golden Arches logo although serving as a trademark is also protected under copyright law because it is possessed of creative expression as well. So even if my use of it did not infringe on McDonald’s trademark rights, I would presumably be infringing on their copyright unless my use was done under some exemption like fair use.

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WHETHER YOUR BUSINESS IS NEW OR EXPANDING, OR YOU ARE LAUNCHING A NEW PRODUCT OR SERVICE, IT IS CRUCIAL THAT THE PROPER DUE DILIGENCE IS DONE BY A TRADEMARK LAW FIRM BEFORE YOU INVEST HARD-EARNED MONEY IN YOUR BRAND!

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