What’s the Difference Between a Copyright and a Trademark?
A copyright protects the tangible expression of an idea, whereas a trademark protects a particular designation of source for a particular good or service.
***
Starting with copyrights, they protect original works of authorship fixed in a tangible medium, like paintings, books, or music. Music presents an interesting and illustrative scenario, because both the music (i.e., the sheet music) and a particular recording of that music, are two separate copyrights. However, to create the recording, the person recording would first have to use the melodies and notes embodied in the sheet music, thus making the recording a derivative work. Derivative works are new creations that are based on or derived from a preexisting work. Holding a copyright in a work gives the owner not only the exclusive right of exact copying of that work, but also of creating derivative works based on the copyright. Thus, if you were to write a song, someone could not simply create an audio recording based on that music and claim it is a separate copyright to insulate themselves from infringement.
A trademark, on the other hand, is a word, symbol, design, or combination thereof, which identifies that a product or service hails from a particular source. Think “Exxon®” for petroleum or “Apple®” for technology. These words embody and identify the source that provides these certain products to consumers. But not all trademarks are equal. To be afforded protection, a trademark must be distinctive—either inherent or acquired. Marks that are merely descriptive may not be afforded protection without proving they have acquired distinctiveness in the minds of consumers. And generics marks are ineligible for protection. Moreover, a trademark need not be a word, as designs or symbols can also be used to designate a product or services source.
Copyrights and trademarks, though related in the sense that they are both forms of intellectual property, protect distinct things. Confusingly, however, copyrighted material can also be used as a trademark, blurring the lines between the two. Take, for example, a company’s logo. While the logo on a product indicates that the particular product’s source is said company, someone had to design this logo. In this way, the logo, which can be used as a trademark in indicating source, is also an original work of authorship—often commissioned as work-for-hire by the company. Thus, it is also eligible for copyright protection. This is why infringers are often simultaneously sued for both copyright and trademark infringement when using another’s design mark.
Any business seeking to protect the immense value contained in both its trademarks and copyrights should be aware of what each form of intellectual property protects and how to reasonably ensure this protection is afforded.
For more information on trademarks or copyrights, and intellectual property in general, see our trademark services and copyright services practice pages.
Klemchuk PLLC is a leading IP law firm based in Dallas, Texas, focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. Our experienced attorneys assist clients in safeguarding innovation and expanding market share through strategic investments in intellectual property.
This article is provided for informational purposes only and does not constitute legal advice. For guidance on specific legal matters under federal, state, or local laws, please consult with our IP Lawyers.
© 2024 Klemchuk PLLC | Explore our services