Do you need a Trademark or a Copyright?

business

Mar 5

In discussions with business owners regarding their intellectual property, I often hear the words “trademark,” “copyright,” and “patent” used interchangeably or incorrectly. I get it! These aren’t terms that are taught in school generally and there’s no “Law for Small Biz 101” (yet 🙃). So let’s breakdown trademarks, and copyrights with a short word on patents.

Before we do that, though, I want to officially define “Intellectual Property.” By definition, Intellectual Property (or IP) is property (such as an invention or process) that derives from the work of the mind. In other words, a creation of your mind that you can own as actual property. But the key with IP is that this creation must first materialize in some way. You have to transform that idea into concrete work. Having an original thought or even saying it out loud to someone else, will not give you protection or ownership.

Now, let’s get into it.

COPYRIGHTS

Copyrights cover the realm of the creative world related to original artistic works. This can include poetry, spoken word, movies, books, photographs, paintings, plays, and even your website. The idea that was the catalyst for these works is not protected by copyright but rather how those ideas are expressed. You must transform that idea into a concrete expression. Having an original thought or even saying it out loud to someone else, will not give you automatic protection or ownership.

Under copyright law, artistic works are automatically protected the moment they are created and there is no requirement to register a work with the Copyright Office. However, the artist will have to register in order to be able to bring a suit if they find a third party is using their work. So there are definite benefits to registering!

TRADEMARKS

While copyrights deal in artistic creations, trademarks are more about brand identity. Whether it be your business name, your logo or a cool slogan you came up with - those brand identifiers, or marks, can only be protected by a registered trademark. Unlike copyrights, however, brand identifiers are not automatically protected at the point of creation. Trademark protections for marks come from actual use “in commerce,” a/k/a actually selling your goods or services. Trademark registration is not mandatory but there are huge advantages to doing so. A registered trademark gives the public notice of your ownership of the mark and offers you the exclusive right to use that mark (as long as that use is connected to the goods/services you included in your application).

The goal of a trademark is to strengthen the connection between a mark and your business. When done right, the moment a consumer sees your name, logo or slogan, they should immediately think of your business. That is true brand recognition. If the brand owner is not immediately apparent, your mark may be considered weak and the opportunity to build customer loyalty could be missed. A weak mark may create a lot of consumer confusion which can give others the opportunity to profit from your brand’s identity. Having a registered trademark and using it consistently, and often, will help you avoid those pitfalls.

PATENTS

Ahh, patents. I don’t know if it's because patents are the first type of intellectual property ever recorded or if the media has overused the term, but most people I speak with assume they need a patent for...something. Patents are extremely technical. In fact, to be a patent attorney you have to pass a separate bar exam and you’re required to have a degree in “hard” science or engineering. That was a no for me, dawgs. But they’re so important and very valuable! Simply put, patents protect inventions. If you invent a new process or design, you should definitely speak to a patent attorney. Patents are generally broken down into two categories: design patents and utility patents. Design patents protect inventions of original designs (clothing, jewelry, packaging, cars). Utility patents are most common and protect inventions of new and useful processes or machinery (engines, computers, furniture, etc.).

And that is that! I hope the above gives you more clarity into which type of intellectual property you hold and how to best protect it. It goes without saying that you should consult with an attorney if you need more information on your IP and any rights you have. This is not an area of the law where you want to cut corners or DIY a process.

Happy creating!