Trademarks and copyrights are often confused for one another but are very different legal tools with distinct purposes. It is important for small business owners to evaluate whether one, or both, of these legal tools would be beneficial for them.
What is a Trademark?
A trademark is a word, logo, or slogan (or color or smell!) that helps consumers link the source of goods or services to the owner. Essentially, a trademark is your brand. Examples of trademarks include:
Brand Names: Nike, McDonalds, Dunkin
Brand Slogan: “Just Do It”, “I’m Lovin’ It”, “America runs on Dunkin’”
A trademark can have common law rights which means that you own the trademark when you first create it without registering it (more on that in a minute). However, just relying on common law (unregistered) rights makes it harder to enforce your mark against others because the standard for getting damages in court is higher (reach out to us or another attorney to learn more!)
However, the strongest way to protect your brand is to register your trademark(s)with the United States Patent and Trademark Office (“USPTO”). Once registered, you own the rights to your mark and can enforce those rights against others using a “confusingly similar” mark within the same realm of goods or services as you and only have to show they did so without your permission. For instance, if a clothing brand started selling clothes with a symbol, Nike could sue for trademark infringement.
A common misconception is that a registered business name or a fictitious name acts as a trademark and secures the brand. This is not the case. A filed business name is used to create a legal entity for tax and liability purposes and a fictitious name is used to connect any other name used by a business to the legal entity or individual person, so the public knows who they are doing business with.
However, the registration of these names with the state does not provide ownership rights over the names. In Pennsylvania, the Department of State website clearly provides this: “Registration of a fictitious name does not create any exclusive right to use the fictitious name. There are no ownership rights to a fictitious name. Other individuals or entities may register the same fictitious name. A fictitious name registration is not a trademark or copyright.”
While registering a business name under an LLC, corporation, or other formal entity (aka not a fictitious name) reserves that name in the state from others registering similar names, a registered business name only applies to the state it is registered in. A trademark is nationally recognized. If you sell goods or services online, this is an important differentiator because you have no rights in your brand to stop another from using it in e-commerce.
By not registering your trademark, you risk another business registering the same or similar mark first and forcing you to rebrand. As a small business, your brand is your biggest asset, so registering your trademark is well worth the investment. Not only does it ensure you will never be forced to rebrand, but it adds value to your company. A trademark can be a financial asset, just like your property, equipment, and vehicles. The more successful your business is, the more your brand will increase in value over time. This can be a huge benefit for various reasons, such as adding value to your business in an acquisition or to license/sell the trademark for additional streams of income.
What is a Copyright?
Copyright is different- Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression (think of your 5 senses!). The different types of works can include photographs, musical compositions, computer programs, books, movies, architectural works, etc. Copyright protects your right to exclusively reproduce, distribute, and perform or display the creative expression and prevents others from exploiting it. For example, if you draw a new character, having a copyright protects someone else from using that character on t-shirts, merchandise, cakes, etc. to receive commercial gain from it.
Ownership of a work of art is immediate and rights are automatically given to the author upon creation (common law rights). However, registration of a copyright with the U.S. Copyright Office is needed to enforce any copyright ownership through litigation. Therefore, it is important to register works of art that are likely to be imitated or on public display. For instance, photographers don’t need to register every photograph they take. However, it may be important to register a photograph they’ve submitted to publication or competition or plan to widely distribute.
Trademark and Copyright Symbols:
You’ve also probably seen a lot of symbols used in relation to trademarks and copyrights so here's a quick guide to the different types of symbols that protect intellectual property:
© The copyright symbol is used to designate a work as copyrighted.
™ The trademark symbol is used to designate an unregistered mark for goods.
℠ The service mark symbol is used to designate an unregistered mark for services.
® The registered trademark symbol is used to designate a trademark that has been registered federally in the USPTO.
℗ The phonogram (sound mark) symbol is used to designate the copyright of a sound recording.
As provided in our last IP blog post https://www.trellispgh.com/post/you-down-with-ip-p-yeah-you-know-me ,the Trellis Template Library™ has some basic language options to protect intellectual property for sale. Check it out along with our other templates!
We’d love to assist you in determining whether a trademark or copyright would be beneficial for your business, or to evaluate your brand and determine the priority of what should be registered. As always, if you have any questions, please contact us or an attorney in your state. We’re always happy to help!
DISCLAIMER: This blog post is meant for informational purposes only and does not constitute specific legal advice or create an attorney-client relationship. Readers should discuss their specific situation and considerations with an attorney.