Copyright Law vs. Trademark Law
Copyright vs. Trademark: What are the differences between the two areas of law?
Copyright Law traditionally protects works of art. In modern times, copyright law protects works that fall under specific categories such as
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
Trademark law protects brands. There must be a relationship between the trademark and the goods or services that the mark represents. Trademarks must be used in commerce. In more modern times, trademarks have been expanded from names and logos to:
(1) advertising slogans;
(2) sounds (not naturally made by a product);
(3) distinctive shapes of products;
Published works have a copyright length of 70 years after the life of the author (or artist) when the author (or artist) owns the copyright.
Published works have a copyright length of 120 years when the owner of the copyright is a corporation.
Trademark registrations in the United States have a required filing between the 5th and 6th years of registration.
During the 10th year of registration, a renewal is required, else the trademark registration will be lost.
The rights that a copyright owner has are:
(1) To reproduce the work;
(2) To sell reproductions of the work;
(3) To publicly perform the work;
(4) To license the work;
(5) To create derivative works from the original work.
Trademark law is an area of law about consumer protection.
One company puts its mark on its goods or services in order to show its quality of its goods or services and in order to show the source of those goods or services.
With businesses responsible for any item that bears their trademark, the care and pride they take in their products increase. Obtaining or creating a brand is an important step.
Registering a copyright requires filling out the proper form at the Library of Congress, stating if the work was made for hire, and all the authors of the work, and the owner of the work. If there is a potential issue, the Library of Congress’ Copyright Office will call the party that applied for the copyright, but it is rare.
Only the Copyright Office from the Library of Congress has the power to cancel a copyright registration.
Registering a trademark is a process that could be very complex. Performing a trademark search is an imperative step before filing to understand the potential plaintiffs using similar marks. The USPTO reviews an application and compares it to registered trademarks, often regusing a trademark application to move to registration. Third parties also can object to a trademark application. The USPTO and the Trademark Trial and Appeal Board and Federal District Courts have the power to cancel trademark registrations.
Copyright Infringement requires the registration in the Library of Congress, that one of the rights of copyright law is not authorized so that the defendant copied the work, and that the copying of the work was wrongful.
Trademark infringement occurs when a similar mark is used in commerce on similar goods (or in advertising of similar services), causing consumers to confuse the goods or services between the two parties.
Our video blog on Copyright vs. Trademark:
Lightly-edited version of the transcript on Copyright vs. Trademark:
Hi, I’m Anthony Verna, managing partner Verna law, where our team tackles intellectual property and advertising law.
If you’ve heard my 30 video blogs and 55 episodes of the “Law and Business” podcast right here, you already knew that.
Melissa from Washingtons Crossing, Pennsylvania asked me to do a little comparison about copyright and trademark law.
Let’s take this right back to the beginning and be a little basic, but that’s okay. Not everybody understands IP law.
Copyright law traditionally protects works of art. This means: books, magazines, newspapers, we call those literary works. In modern times, we shove computer programs into literary works because you write code, somehow, like you write a book: at least that’s the fiction we provide.
Trademark law is all about branding. So there has to be a product, goods or services, and there has to be something relatable to that: a slogan, the name of the brand, the name of the business, advertising slogans, sounds, maybe the describe the distinctive shape of the products.
Colors, tastes, touch, motions, all of those could be trademarks, but it’s about the relationship between the brand, however, we want to define the brand, and the product.
Copyright law does require some kind of registration in order to be enforceable.
Trademark law may not require a registration, but federal trademark law certainly does require registration, otherwise you have what we call a common law trademark. There’s no research done to it. There’s no due diligence done for it. It’s there and you will make the claim on the trademark if you walk into court, but you will not be able to receive damages under federal trademark law. You might be able to trick the court under the Lanham act into having what we call a famous trademark. And, therefore there, are some other rights in that famous trademark. But again, it’s very, very tricky.
Copyright law lasts for 70 years after the life of an author or for 120 years if a corporation owns the registration of the copyright.
Trademark law has, after registration, a five or six year requirement for filing and is renewable every 10 years until the company actually stops using the trademark.
But both are business assets and both act very differently.
I hope this little reminder helps you understand: copyright law, traditionally art; trademark, while traditionally brands, and that’s really the big difference between the two.
Again, I’m Anthony Verna. You can visit us on vernalaw.com.
Talk to you again soon.