Trademark vs Copyright

Two different protections that are constantly confused: one protects what identifies your source, the other protects what you created.

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What it means

These protect different things, arise differently and last for different periods, and using the wrong one is one of the most common mistakes small businesses make.

A trademark protects what identifies the source of goods or services - a name, logo, slogan or other indicator that tells buyers who something came from. The right grows out of actual use in commerce, and it exists to prevent confusion about origin. Registration is not what creates it, though registration adds substantial advantages. It can last indefinitely, for as long as it is used and defended.

A copyright protects an original creative work fixed in a tangible form - text, photographs, music, code, video. It attaches automatically the moment the work is fixed, with no filing required, though registration is a practical prerequisite to enforcing it in court and affects what can be recovered. It lasts for a long but finite term and then the work enters the public domain.

The line is drawn by function, not by medium. A logo can be both: protected as a trademark for identifying the business, and as a copyright for its artistic expression. A business name, on the other hand, is generally not copyrightable at all - names and short phrases are not the kind of thing copyright covers - which surprises people who assume registering a company protected the name.

Where this comes from

When people hire a lawyer for this

Before committing to a name is when advice is cheapest, because a clearance search that finds a conflict costs far less than a rebrand after a demand letter. Beyond that, the recurring problem is ownership of commissioned work: absent the right written agreement, the freelancer who made the logo or wrote the code may own the copyright even though the business paid for it.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• Copyright Registration and InfringementHow copyright arises automatically in an original work and what registration with the Copyright Office adds - the right to sue, statutory damages and fees - together with the elements of an infringement claim, the exclusive rights it protects, and the remedies and defenses on both sides.
• DMCA Takedown Notice and Counter-NoticeThe notice-and-takedown procedure under which a copyright owner asks a website, host or platform to remove infringing material, the platform removes it to keep its immunity, and the person who posted it may file a counter-notice to have it restored - with the penalties for a knowingly false notice on either side.
• Fair UseThe defense that allows limited use of a copyrighted work without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship and research - the four statutory factors, what "transformative" has come to mean, and why no rule of thumb about word counts or percentages is the law.
• Patent (Utility, Design and Provisional Applications)The federal grant that lets an inventor exclude others from making, using or selling an invention for a fixed term - what can be patented, the novelty and non-obviousness tests, the difference between a utility, design and provisional application, and why the first-to-file rule makes the filing date everything.
• Right of PublicityThe right to control the commercial use of one's own name, likeness, voice and other identifying features - a state-law right that varies in who holds it, whether it survives death, and how it yields to news, commentary and expressive works under the First Amendment.
• Trade SecretInformation that derives value from not being generally known and that its owner takes reasonable steps to keep secret - formulas, customer lists, processes, source code - protected indefinitely under state law and a federal civil statute for as long as it stays secret, and lost the moment it does not.
• Trademark Registration and Likelihood of ConfusionHow a brand name, logo or slogan becomes a federally registered trademark - the distinctiveness spectrum, the use-based and intent-to-use applications, the examination and opposition process - and the likelihood-of-confusion test that decides both whether a mark can register and whether someone else's use infringes it.
• Work Made for HireThe rule that makes an employer, not the creator, the author and owner of copyright in work created by an employee within the scope of employment - and the much narrower rule for freelancers, under which a commissioned work belongs to the client only if it falls within listed categories and a signed agreement says so.

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