When talking about their legal needs, prospective clients often use the terms “copyright” and “trademark” interchangeably. These are two different types of intellectual property with distinct legal requirements and implications. When seeking legal advice in protecting your intellectual property, it is helpful to understand the difference between copyrights and trademarks.
Intangible ideas and concepts that are expressed in a tangible form (through writing, drawing or other recording) becomes intellectual property. For example, a book is a tangible thing which contains intangible ideas expressed through language and imagery. Inventions, ideas, creative and artistic works – indeed anything that is the product of human thought and creativity expressed in a tangible form – is intellectual property. There are five basic types of intellectual property recognized under US law: patents, trade secrets, trademarks, copyrights, and certain personal/reputational rights (rights of privacy and publicity, and moral rights).
Trademarks are names, symbols, colors, sounds, or other devices (or combinations of those) used to identify goods and services, and to distinguish them from the goods or services offered by others. A name used to identify a business or organization – Ford Motor Company, for example – may not function as a trademark. The same word or phrase used to identify a product or service – the word “Ford” to refer to a car or truck – functions as a trademark. A domain name may also function as a trademark depending on the circumstances under which it is used. Names, logos, and slogans used to identify goods or services are examples of trademarks. Trademarks may be registered with the US Trademark Office. A trademark must be used in connection with the goods or services it identifies – otherwise it ceases to exist.
Copyright is the exclusive right to reproduce, distribute copies, prepare derivative works, and, for certain works, the right to display or perform the work in public. When an idea or concept is fixed into a tangible medium of expression (through writing or other means of recording) and meets certain threshold requirements including originality, that tangible expression is protected by copyright. Books, movies, music, photographs, and artwork are just some of the many types of works that may be protected by copyright. Under current US copyright law, copyright in a new work created by an individual lasts for the life of the author plus 70 years. While no longer required, depending on the circumstances it may be a good idea to register the work with the US Copyright Office.