Do you own a business, perhaps with its own logo, tagline, or offering its own unique service? If so, have you thought about whether or not you may need the protection of a trademark or copyright?
Many people are confused when it comes to trademarks and copyrights, and what advantages and protections each may hold for a business. Copyrights and trademarks can be an important part of a business’ marketing efforts and result in increased sales and profits for a business.
The United States Patent and Trademark Office (“USPTO”) defines a trademark as “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” The USPTO defines a service mark as “a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods.” The simple difference between the two is that one is used with respect to goods, while the other is used with respect to services. Traditionally, the term “trademark” refers to either a service mark or a trademark.
While a trademark does not have to be registered (whether with a state or with the USPTO to be enforceable, registration has the benefit of notification to the public, a presumption of ownership(whether within a state or nationwide if registered with the USPTO, and potentially the exclusive right to use the mark with respect to the goods or services detailed in the trademark registration. This allows a business to prevent a competitor from siphoning off sales using a confusingly similar mark.
The USPTO defines a copyright as something that “protects works of authorship, such as writings, music, and works of art that have been tangibly expressed.” A copyright owner has the exclusive right to reproduce the work, to prepare or license derivative works, and to either display or perform the work publicly. A copyright protects the form of expression rather than the actual subject matter. For example, a copyright could protect a particular flyer describing a business’ products from being copied but could not prevent others from writing a description of their own regarding the product. Copyrights are registered with the Copyright Office of the Library of Congress, as opposed to trademarks, which are registered with the USPTO.
For businesses, a copyright would be appropriate to protect art (i.e., an advertisement promoting the company), an advertising jingle, or print or media recordings that promote the business. In contrast, a trademark is used to protect specific words, phrases and logos that promote the business.
In some instances, both trademark and copyright protection are advisable for a business, depending on the needs of the business and the types of materials are being used. It is recommended that a business undergo an analysis and consultation with an experienced trademark and copyright attorney if it feels it may need both trademark and copyright protection.
To learn more, contact our Intellectual Property Department Chair Anita G. Fox at firstname.lastname@example.org or 517.377.0837. Over the past three decades, Anita has managed complex cases in federal and state courts in Michigan and nationwide, spanning literally from coast-to-coast and in more than 20 states.