Copyright or Trademark - What's the Difference?

Copyright vs Trademarks
••• Copyright vs Trademark. Peter Dazeley/Getty Images

You have created something great and you want to protect it. But you're not sure whether to copyright it or trademark it. 

In the worlds of business and the arts, this question often comes up about the difference between a copyright and a trademark and when to copyright something and when to trademark. And the marks are also confusing - which mark do I use when?

Copyrights and Trademarks as Intellectual Property (IP)

Copyrights and trademarks are both forms of intellectual property.

Intellectual property (or IP) is a mental creation that has value to a business. In addition to copyrights, trademarks, and service marks, intellectual property includes patents. From an accounting standpoint, because this intellectual property has value, it is considered an intangible asset (with no physical form) and IP can be bought and sold, or its use can be licensed, (sold).

What is a Copyright? 

A copyright is what businesses usually think of first when they have created an item of intellectual property and they want to make sure no one else uses it. Copyrights are used to protect an original creation which is put in tangible form, like a printed book or e-book, a painting, a printed photograph or a negative, or a play script. Works which can be copyrighted include books, articles, works of art, fabric works, sculpture, photographs, poems, plays, dances, musical compositions, television and radio broadcasts, computer software, and industrial designs.

You can also copyright original work on a website, but domain names cannot be copyrighted. A recipe can be copyrighted, but not a list of directions or ingredients.

What Works Cannot Be Copyrighted?

Other works that cannot be copyrighted include:

  • Works that are not fixed in some tangible form. For example, a speech that isn't recorded or written out cannot be copyrighted.
  • Titles, names, short phrases, and slogans
  • Familiar symbols or designs, typographic variations or coloring
  • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devises
  • Works that are "common property" or are in the public domain, like historical facts or measurement conversions.

If I Can't Copyright Something, Can I Trademark It?

Some of the creations that cannot be copyrighted can be trademarked. For example, you can trademark a title or name, short phrase, or slogan, along with a logo.

A trademark is a word, name, symbol, or device, or any combination which is used or intended to be used to identify and distinguish the goods or products of one company from those of others. For example, your company name may be able to be trademarked, along with your logo or the artwork that goes along with your company name.

You might also be able to trademark the name of a product your business sells (in addition to patenting the product, if it is something new) so that no one else can use the name.

A service mark is another type of trademark, for service businesses. For example, insurance companies and delivery services use service marks.

Can I Trademark a Business Name? 

Let's say you have a great name for your business.

Maybe you are thinking you should trademark that name. Before you consider trademarking it, you should: 

  • Check the name with your state, to make sure no one else in the state is using it. 
  • Then, if no one else has the name you want to use, register your business name with your state. If you are forming a new business as a corporation, partnership, or LLC, your business name is registered automatically as part of the business registration. 

After all this, you might want to consider trademarking that name. However, not all business names have the ability to be trademarked. There are specific criteria for trademarking, and someone else may already be using the name. 

The U.S. Patent and Trademark Office says, 

a state’s authorization to form a business with a particular name does not also give you trademark rights and other parties could later try to prevent your use of the business name if they believe a likelihood of confusion exists with their trademarks

How Do I Know If My Trademark Will Be Accepted? 

The main criteria the trademark office uses is that a mark cannot be confused with another. If a name is part of a trademark, it must be unique. A name like "Party Animal" probably wouldn't be able to be trademarked, because it's a common phrase. Marks are reviewed to see if they are similar to other existing trademarks and also that the products or services being trademarked are not related to existing products or services "such that consumers would mistakenly believe they come from the same source"

How Do I Register a Copyright or Trademark? 

Some differences and similarities between copyrights and trademarks. In general, you don't necessarily have to register a copyright, but you should always register a trademark. 

  • How to register. Copyrights are registered with the U.S. Copyright Office, while Trademarks/Service Marks are registered with the U.S. Patent and Trademark Office (USPTO)
  • Registration for copyrights.You do not have to formally register a copyright in order to be able to enforce it, but you should always use the copyright symbol ©, the year of first publication, and the copyright owner on every instance of the work.
  • Registration for trademarks. In order to enforce your exclusive use of a trademark, you must register it. While the registration is being processed, use the "TM" or "SM" mark; after registration, use the ®.

How Do I Search for Existing Copyrights or Trademarks? 

Before you attempt to register for a copyright or trademark, be sure to check to make sure no one else has a copyright or trademark on what you want to register. The Copyright Office and USPTO both have databases you can search.

Do I Need an Attorney to File a Copyright or Trademark Application?

Both the Copyright Office and USPTO have online services that allow you to register a copyright or trademark yourself. But having an intellectual property attorney help you through the process is advisable, for several reasons:

  • An attorney can do more thorough research on the databases, to be sure you are not using a trademark or copyrighting something someone else has first claim to.
  • IP attorneys know how to smooth the process to get a trademark or copyright registered faster, and
  • An attorney with knowledge of your business and IP law can help you if you need to file a lawsuit against someone for violation of your copyright or trademark.

More Information about Copyrights and Trademarks