Intellectual property is one of those often misunderstood concepts when it comes to running a business or creating a piece of art, whether it be film, music, or a painting. It is likely that you have heard the terms “trademark” and “copyright” being thrown around in discussions about intellectual property, but what are these terms? What are the differences? How do they protect you as a business or creative?
Trademarks and Service Marks
A trademark is a word, symbol, design and/or phrase used to identify and distinguish the source of a good from the goods of others. Simply put, a trademark identifies the source of a product or service. Brand names, logos, mottos, and slogans are just a few of the things that a company can trademark. Famous trademarks include “Coca-Cola,” “McDonalds,” and “Microsoft.”
Service marks are similar to trademarks, except they offer protections to services, rather than goods. An example of a familiar service mark would be “United Airlines” and its “Fly the Friendly Skies” tagline.
Many companies use both trademarks and service marks, because they provide both goods and services.
Unlike copyrights, trademarks do not expire after a set period of time, but must be renewed. They can last indefinitely, so long as the mark is being used in commerce. Similarly, trademark registrations do not expire, so long as the proper dues and documents are filed. Demonstrating the use of the trademark once is not enough. A company or person must demonstrate the use of a mark throughout the mark’s life in order to maintain registration and the benefits afforded by registration.
The United States is a first-to-use country, so some legal protections are in effect simply by using the mark in public commerce. However, without a federal trademark registration, the mark will only be protected within the geographic region where the business is located. Registering a mark with the United States Patent and Trademark Office allows a business to gain a presumption of national validity. While you are still able to sue for trademark infringement without federal registration, a claim will be limited to your geographic area and/or a false advertising claim. Registration with the USPTO provides a proof of ownership, national rights, and enhanced damages for infringement such as statutory damages, and attorney fees and costs. While the filing fee is larger than those for copyright registration ($250 per class of goods/services for the Plus application, $350 per class of goods/services for the Standard application), the benefits afforded to registration are well worth it.
Copyright
A copyright is the protection of an original work within a fixed or tangible form. Copyrights were created to protect ownership in artistic works such as music, motion pictures, architecture, and even computer software. While an idea cannot be copyrighted, the expression of an idea within a tangible form can be.
The exclusive rights offered by copyright include the rights of reproduction, creation of derivative works such as sequels or spin-offs, distribution, public performance, public performance by digital means for sound recordings, and public display for works such as photographs.
While the length of the copyright varies by situation, such as a work-for-hire, generally a copyright lasts for the duration of the author’s life plus 70 years following their death.
It is not a requirement to register a work with the United States Copyright Office, as a work is copyrighted the second that it is created. However, it is still advised to register your work, as an author of a work is not able to bring a lawsuit for copyright infringement without a certificate of registration issued by the Copyright Office. The registration of a copyrighted work can even afford valuable remedies to the copyright holder, such as statutory damages, and attorney fees and costs, if the registration is filed within three months of publication of the work or prior to infringement. Given the small application fee to file for registration ($45 electronically for a single work by an individual author who is the claimant, $65 for all other electronic applications), it is hard to argue a downside to registering.
Simply put, trademarks and copyrights protect similar, but different types of assets. For more information on how you can best protect your intellectual property, feel free to contact me, Amanda Alasauskas ([email protected]), or the managing partner at Arnett Law Group, LLC, Daniel Arnett ([email protected]).
