Trademark Distinguished from Copyright

11/20/2020

Clients sometimes ask about the difference between a copyright and a trademark. Both involve intellectual property, but generally cover different territory. With copyright, think of artistic and literary works such as paintings, recordings, or books. Trademarks, on the other hand, are words, slogans, symbols, or designs that identify and distinguish the source of a party's goods or services from those of others. This could be the logo of a nonprofit record label, like innova.

A trademark requires actual use

The basis of trademark law is that a party's trademark must represent certain goods or services in the mind of the public. If a trademark is not actually being used, there is no basis for protection. In other words, you cannot claim trademark rights where there is no public perception that the trademark represents your goods or services. You may have come up with a wonderful name for a band, but unless you are using it in the marketplace, you have little claim to it under trademark law.

As I've shared in the post about copyright, once you have successfully registered a copyright, that registration is good for the life of the author (creator) plus 70 years. A trademark, however, can potentially last forever, as long as it remains in continuous use. So if you choose to register a trademark, it will need to be continually renewed after a certain period of time. This is because an owner has to prove the trademark is still actively being used in commerce. For example, the Schlitz slogan, "The Beer That Made Milwaukee Famous", was first used in 1894 but was not registered with the U.S. Patent and Trademark Office until 1953. It is still in use today.

The benefits of registration

Registration of a trademark is not mandatory. You can establish "common law" rights in a trademark based on your use of the trademark in commerce. Still, there are certain benefits to a federal registration of a trademark. That registration

  1. Provides notice to the public about your claim of ownership
  2. Creates a legal presumption of ownership nationwide
  3. Grants the exclusive right to use the mark for goods or services covered by the registration 

Finally, if you are using an unregistered trademark, you may indicate that use with "TM". Only federally-registered trademarks may use the ® designation.