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I regularly get calls from clients who think they need a copyright when in fact they need a trademark (or even a patent!). The confusion is completely understandable, since other than intellectual property lawyers and those in related fields, our educational system simply doesn’t teach about intellectual property. In fact, my schooling on property didn’t go beyond “don’t take what’s not yours”. Let’s get the basics out of the way:

What’s a Copyright?

Copyright is protection for authors of “original works” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. Copyright owners have the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

What’s a Trademark?

A trademark is a word, name, symbol or device used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. Trademarks protect the name, not the good or service itself. You can sell all the cola you want, but you can’t sell it as Coca-Cola, even though your beverage may be chemically identical. Therein lies the potential value of a trademark: the price difference between Chek Cola and Coke.

Copyright vs. Trademark

Copyrights protect authorship in tangible forms of expression, including: two and three-dimensional art, images, songs, music and sound recordings, written works, plays and other performance arts, and videos of performance arts.

Trademarks protect words, phrases and logos used in federally regulated commerce to identify the source of goods and/or services.

Copyright protects the form of expression rather than the subject matter of the writing. For example, if you copyright a description of a widget, you could prevent others from copying your description. You would not, however, be able to prevent others from writing a new description or from making (or using) the widget.

Sometimes both copyright and trademark protection are useful. For example, a new slogan for your widget may also appear in print ads for the widget. You will likely want both copyright and trademark protection, since they offer different protections for different things. The ad’s text and graphics are covered by copyright, but the slogan may be protected by trademark law. Cover your bases by getting both — your copyright will not protect a bare slogan, or trade name.

Additionally, registering a trademark is entirely different from registering a copyright. Copyrights are cheaper and generally easier to register, as opposed to trademarks, which require a longer and more adversarial, as opposed to ministerial, process.

Of course, copyrights come with mandatory licensing and royalty payments. Trademarks do not.

Lastly, the tests for infringement are quite different for copyright and trademarks (that’s a whole ‘nother article right there!).