Trademark vs Copyright: A Quick Guide for Small Business Owners

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Guest Post by Andrea Vetter

One of the questions I see business owners and content creators ask is whether they need to copyright or trademark their work. But, a lot of people aren’t sure what the difference is between trademark vs copyright and which one is right for what they’re trying to protect.

This guest post from my friend Andrea Vetter, will cover the basics of copyright and trademark, as well as the differences, and which one you need to protect your work.

Intellectual property

Intellectual property is basically anything you create with your mind. This can be creative works like writing, music, or drawing. It can also be symbols or phrases representing your business. Or even inventions or processes you’ve created.

There are three main types of intellectual property protected by the law: trademarks, copyrights, and patents.

In this article, we’re only going to discuss trademark vs copyright. Patents are an important aspect of intellectual property, but they tend to be more scientific in nature and not relevant to most content creators and business owners.

Learn more about trademark vs copyright

Trademark

What is trademark?

A trademark is a word, symbol, phrase, design, or combination of those things, that tells where the goods or service come from.

There are also service marks (used for service businesses) but in this article
I’m going to use the term trademark to refer to service marks, too. Things like logos, slogans, and brand names can be trademarked.

What work can be trademarked?

To be trademarked, a mark has to be distinguishable from current marks. There are several things the trademark office looks at when they get an application for trademark. Basically, if you want to trademark something it needs to be different enough from the current marks.

One of the biggest reasons for rejection is the “likelihood of confusion” with an existing mark. If marks are too similar and the goods and services could confuse customers, then the application will be rejected.

Marks that sound like, look like, and/or have the same commercial meaning as a registered mark will be denied.

They will also look at whether the two businesses operate in the same, or related, category. So, if you want to register your logo for an accessories company that’s similar to an existing mark for a clothing company, your application will probably get denied.

Related Post: Protecting Yourself and Your Business: Form a Legal Entity

When choosing your mark, it’s best to choose a distinctive mark. This will be easier to keep others from using it. Marks that are merely descriptive will likely be rejected.

Think about the company “Apple”. If they were trying to trademark the name for actual apples, that wouldn’t be allowed because it would just be describing what the product is. But, by using “Apple” as a brand name for a technology company, that makes it very distinctive.

To find out more about trademarks, visit the USPTO (US Patent and Trademark Office) website. They have a lot of resources and educational information available.

How do you trademark your work?

You can have a trademark just by using something in commerce. This is called “common law trademark”.

This means you have automatic protection for your trademark (meaning you don’t have to register), but it’s generally limited to your geographical area. Which may be fine if you’re only operating locally, but if you want to take your business to a national level, you would need to register your trademark for protection.

Registering your trademark

Trademarks are registered with the USPTO. Applying for a trademark is a highly detailed process and it’s one area of the law where I highly suggest hiring a trademark attorney to help.

Filing fees are non-refundable and it can be a long process, so I think it’s better to have someone experienced in the field to help you along the way.


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Copyright

What is copyright?

Copyright is federal protection for almost all kinds of creative content. For example books, music, drawings, podcasts, or other written/creative work.

It has to be “fixed in a tangible medium” which means it has to be out in the world in some way. You can not copyright ideas or things you want to create in the future.

It also must be minimally creative, which means it can’t be so basic or could be created by anyone.

Having a copyright on your work means it can’t be stolen and used by others without your permission. It gives you the right to do things with that work like create derivative works, copy it, or sell it.

How do you copyright your work?

As soon as you put a minimally creative work that is fixed in a tangible medium out into the world, you have automatic copyright protection.

Registering your copyright isn’t necessary, but it may be something you want to consider. Though you may have an automatic copyright, having a registered copyright gives you more options when it comes to enforcement and damages (money you win in a lawsuit). You can find out more about copyright here.

trademark vs copyright for small business owners

Copyright notice

Though a copyright notice isn’t required, it’s always a good idea to include a notice on your work. This puts others on notice that you claim copyright to the work. It can also make it harder for an infringer (someone who ‘steals’ your work) to say they didn’t know it was copyrighted.

This notice should include:

  • name of creator
  • date first created
  • and the © symbol. (If you have a blog or some other type of ongoing work, it is acceptable to use a date range like 2016-2018-just make sure you update it each year its ongoing.)

Registering your copyright

As I mentioned, it’s not required to copyright your work, but it may be a good idea. This is generally pretty inexpensive ($35-$85) and fairly simple to do-even without an attorney.

By registering your copyright, you give yourself the option of suing if someone infringes upon your copyright and potentially increases the damages you can sue for.

You can register after someone infringes and still bring a lawsuit, but you lose out on the statutory damages available. You can register your copyright online here.

Trademark vs Copyright

It is possible for a business to need, and have, all three types of intellectual property. Though each type will protect different aspects of the business.

Let’s use Nike as an example of how a company may need all three types. The brand name “Nike” and the swoosh are trademarks. When consumers see either of those, they know the source of that product and know what to expect when it comes to the quality of that product.

Nike also has many, many patents related to the design and functionality of their products.

Finally, there are dozens (or more!) Nike commercials and written advertisements. These would all be subject to copyright protection.

Knowing what intellectual property you need to protect is an important part of running your business.

You may not need anything to start out, but as you grow, you’re more likely to want to make sure no one else is able to come in and capitalize on the hard work you’ve put in over the years.

What is the difference between trademark and copyright? How do you file for your small business? This post covers all the basics!

Andrea Vetter is a practicing solo, work-from-home, attorney specializing in small business & estate planning. She started the site, www.vettedbyandrea.com, to help provide entrepreneur moms with business tips, legal information, and legal templates to run their businesses well. She lives with her husband, four children, dog, and cat. She loves reading (especially nonfiction), planning, and making to-do lists.

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