While the terms trademark and copyright both carry similar weight in regards to protecting the intellectual or designed property of an individual, company or organization, the differences between what these two terms represent is quite different.
In general, a trademark is word, slogan, logo, or design, and the combination thereof, that serves to identify and differentiate the goods and services of one entity from another. Trademarks protect the owner’s reputation associated with the goods and services they produce as well as to protect the public from confusion and deception as to the origin and quality of those goods and services.
“With trademarks we have the common law trademark protection but we also have federal trademark protection,” said Hartman Global Intellectual Property Law’s Domenica Hartman. “If they have filed federally then before the U.S. Patent and Trademark Office is going to register that trademark, let’s say a new name for something, they require that you have use; that you actually have commercial use for that mark.”
“A company will say, ‘We like this name, we like this slogan and we have intent to use it.’ The trademark office says, ‘Fine, we’ll examine it, we’ll allow it and we’ll give you three years to commercialize it.’ If you don’t use it after three years it’s abandoned and it belongs to everybody.”
“A lot of companies will reserve trademarks and then do their own studies to see how that name pans out and whether people like the name or not. Once the trademark is registered you have to show that you're still using that mark six years after it becomes registered or it returns to the public domain.”
A copyright, on the other hand, could last over 100 years from the life of the person who created the work. Copyrights protect original “works” of authorship that are fixed in tangible form, such as literary, musical, dramatic, pictorial, graphic, sculptural, audiovisual, and architectural works. Generally, a copyright gives the owner of the copyright the exclusive right to reproduce a work, to prepare derivatives of the work, to distribute copies of the work, and to display the work publicly.
“Copyright protects any work of creativity,” Hartman said. “The thing of it is, why shouldn’t people be able to profit from their creativity? Certainly you would not like it if people were taking something you had created and printing it on something like Valpo ‘Extra’ Life. We want to protect the goodwill that’s associated with whatever that product is, whether it’s a song, a book or any work of creativity, we want to protect that. We don’t want people to palm off of you.”
There are two types of copyright protection -- Federal Copyright Protection which is registered at Library of Congress and then there is Common Law Copyright Protection which exists once a work is created.
“Once your work of creativity is published you have copyright protection in it. If someone stole your book that you’re writing at home you can go after that person but under Common Law Copyright Protection you have to prove that the person had access to it, that they have the intent to copyright the book and whether or not you have been damaged. That becomes a very, sort of ‘he said, she said’ factual inquiry.”
If, on the other hand, the author of the book registered for copyright protection with the Library of Congress they don’t have to prove any of those. The author basically states that their stolen material is being published or sold under someone else’s name. After that the government will decide on a statutory amount of damages depending on the type of book and how many copies were sold. The same can be translated to musical compositions, pictures or other creative works.
“Federally copyrighted registration is a phenomenal bang for the buck,” says Hartman. “The copyright filing fee is anywhere from $35-$65 but you get that great protection and, actually, you don’t have to have copyright protection in place until the day before you sue the person who stole your work. It can be that morning.”
Hartman advises people who might be working on something that they’ve created to wait until they are 100% finished with the work before worrying about registering it with the Library of Congress.
“As I tell people, save your money. When people come in and they’re creating something new whether it’s a patent-able idea or a copyright-able work it’s one step forward and two steps back. Resources are tight and I let people know to save their money until the final version. Then let’s register it.”
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