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"...copyright assures authors the right to their original expression....”

                    Justice Sandra Day O'Connor

The Company Counsel Articles To Help Mind Your Business

Trademark or Copyright?  Sure.  Wait, What?                                                  2014 - 2

Confused about the difference?

If you are confused about the terms Copyright and Trademark, you are not alone.  They both sound important and the initial inclination may be to use them interchangeably, but they are very different types of intellectual property.  Yes, “property.”  Someone (or some company) owns the rights to the “intellectual property.”

 

Trademark – a Trademark is a word, phrase, symbol or design, or a combination any of those, that identifies and distinguishes the source of a particular product or service.  For example, when you see the Nike swoosh trademark, you know that the product (the sneaker, the sweatshirt, the cap) has a certain high quality associated with it, and you know the source of that product (the Nike company), and you know that the Nike product is different from products bearing the leaping cougar (Puma), also high quality – but different.  The swoosh and the leaping cougar are Trademarks.  The words, “Nike” and “Puma” are also Trademarks.  The artwork (the design) of the swoosh is protected by Copyright … but that’s the next section of this article; and the swoosh itself is protected by Trademark.

 

In order to obtain a Trademark, you will need to plan to use or be using your “mark” (word, phrase, symbol, or design) in association with your product or service, in interstate commerce (commercial transactions that cross state boundaries or involve more than one state).  Selling your brand of lemonade in your neighborhood would not qualify.  To formally register your Trademark, you will have to make application to the United States Patent and Trademark Office (www.uspto.gov).  If the mark is important to you and your business, it will be wise to apply to register your mark.  While the process may seem simple, the consequences of error are many.  It is always recommended to obtain professional legal advice when attempting to register a Trademark.

 

Copyright – Copyright protects “original works of authorship” including artwork, music, literary works, dramatic works, and certain other creative works, both published and unpublished.  To be capable of Copyright protection, the work must be original and in tangible form – so the original music you created that’s playing in your head is not protected by Copyright until you express it by writing it out (notation/sheet music) or recording it (each the writing and the recording are tangible forms).

 

The 1976 Copyright Act generally gives the owner of the copyrighted work a bundle of exclusive rights, such as the right to reproduce the work, to prepare derivative works, to distribute copies of the work, and to perform (or display) the work publicly.

 

While Copyright protection comes into being the moment you put your original work of authorship into tangible form, you would be wise to register your work with the United States Copyright Office (www.copyright.gov) as registration perfects your Copyright ownership in the work.

It is important to note that ideas are not protected by Copyright; only the expression of an idea is protected by Copyright.  Said another way, Copyright protects the form of expression rather than the subject matter of the work.  For example, you have an idea for a play about two youths from opposing families or factions who fall madly and irrationally in love, but end up eternally separated by death.  Your idea is not protected by Copyright, but if you were to further develop (or more fully express) that idea, providing characters, context, and content, in written or other tangible form, you may come up with something like West Side Story, which would be (is) protected by Copyright.

 

Another example might be your idea to create an artwork depicting a bowl of fruit.  While your idea is not protected by Copyright, your expression of that idea (your painted canvas featuring a wooden bowl with a variety of apples, pears, and grapes, on a green-clothed table) would be protected by Copyright.  However, while you would own the Copyright to your version (your painting) of that assemblage of fruit, I could also assemble similar fruits in a similar fashion and create a painting of that still life, and I would own the Copyright in my expression (my painting) of the fruit in a wooden bowl on a green-clothed table.

 

A note of caution, while the above examples may seem simple, even straightforward, assessing Copyright and Copyright Infringement are not.  The paragraphs here are intended as an introduction to a vast and intricate body of law.  But now you know two important things:  Trademark is not the same as Copyright, and ideas, in and of themselves, are not protected by Copyright law.

 

Now for the big finish.  Here are some bullet-point take-aways for Trademark and Copyright:

 

1.  Trademark – protects words, phrases, and logos associated with a particular business, serving to identify the source of the goods or services provided by that business.  To obtain Trademark rights in the mark (word, phrase or logo), the business must be engaging in interstate commerce with respect to that product or service.

 

2.  Copyright – protects original works of authorship as fixed in a tangible form of expression.  Copyright-able works include images (art, photographs, graphic designs, drawings), songs (music/lyrics and sound recordings), literary works (books, manuscripts, publications), other written works, audio/visual works (film, television, video), and other performance arts.

 

3.  Copyright and Trademark protection are sometimes obtained for the same project, for example, when a business uses a television commercial to introduce a new product and slogan, the business will want to protect the slogan (the phrase or group of words identifying the source of the product) by registering it for Trademark, and will want to make sure it holds the Copyright to the advertisement text, graphics, and audio/visual work (the TV commercial).

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