What is the difference between copyright, trademark and registered?

Q:

What is the difference between copyright, trademark and registered?

A:

Overview of Copyright

Copyright is a form of intellectual property law and allows the creator of a work to protect their work, assuming it is “fixed in a tangible medium of expression.” Works that are protected under copyright law include those that are literary, graphic, architectural, musical, artistic and dramatic. Examples can include videos, movies, poetry, recorded music, photographs, books, video games, pantomimes and paintings.

Additionally, copyright laws only protect works that are created solely by the originator, are considered “original” works and have taken some creative effort to produce. For example, if you simply copy a list of ingredients for a recipe or copy a listing from multiple sources, this work cannot be copyrighted.

Copyright protection also has limitations. For example, a copyright cannot be used to protect ideas, methods, titles, names, works by the federal government (exceptions exist), fashion or works without authorship. Some of these may be protected, however, through other means such as a patent or trademark.

To give notice that a work is copyrighted, some creators will denote the work with the "©" symbol. Although this can provide others with notification that the work is copyrighted, it’s not necessary to include this mark to protect the work. Protection is established at the time that the work is created.

Overview of Trademark

Trademarks are used to identify the source (i.e., business) and the quality of products. Trademarks can include any symbol, word, design, sound, color or mark used by a company to differentiate their business from other businesses. Note that trademark protection extends to the geographic area and trade channel in which the product is sold and to the specific goods with which the mark is associated.

To receive the strongest protection when using a trademark, a company should create a mark that is distinctive. For example, a trademark that is descriptive and immediately brings to mind the qualities, function, attributes and features of a product can be good. But other trademarks that are considered “fanciful,” including words or marks that have been created (think Apple or Google) can be even better. Generic words such as "laundromat" or "gas station" do not have a distinctive identifier and are not protected by using a trademark.

  • How can a trademark become ineffective?

Unfortunately, even if a strong trademark has been created by a business, there are several ways in which a trademark can become ineffective. The most common include dilution by a business when the trademark is used to identify different products, uncontrolled use of the trademark by different product producers, non-use of the trademark and genericide, which occurs when a distinctive trademark of a product has become so commonly used, or misused, that the first product that used the trademark is no longer distinctive. Common trademarks that have been victims of genericide include kleenex, cola, thermos, trampoline, aspirin and escalator.

  • Identifying a Trademarked Product

Companies that have created a trademark but have not yet registered the mark with the United States Patent and Trademark Office (USPTO) should use the symbol "™" to denote that their mark is not registered but is in use. Using the symbol, however, does not guarantee protection.

Registered Trademark

A registered trademark is established when a business registers its trademark with the USPTO. After the completion of the registration process, which can take up to four months to complete, a trademark is registered for 10 years with confirmation every five or six years to verify that the trademark is still valid and in use. If a trademark has been registered, the mark is designated with the symbol "®."

The benefit of trademark registration is that it will deter others from stealing or misusing your trademark, allow you greater authority and ownership if you have to sue for trademark infringement in court, and generally give you greater rights within the United States to own and use your trademark. Note, however, that registering your trademark alone will not offer 100% trademark protection. You must also continue to use your trademark in your business, and it must be the common identifier for your business’s services or products.

  • What is the best way to protect my trademark?

To avoid dilution, genericide and the misuse of a trademark, a company should take several steps: register its trademark with the USPTO, complete the necessary state trademark registration process, and use the mark in business as the sole identifier of the product. Using the trademark can create common law trademark protection and can be used to protect a trademark.

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What steps should I take if my copyright or trademark is used illegally?

If your trademark or copyrighted material was used without your legal consent and permission, you may be able to sue for infringement. Talk to a lawyer if you have questions. If you win your case for infringement, you may receive compensation for your loss of profits and other economic hardships.

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Whether you're facing a legal issue or just seeking information, Justipedia aims to be your most trusted resource for legal information on the Web. With the help of legal professionals across the country, we put the law in plain language to help answer your top legal questions.

Justipedia was founded by Internet veterans Cory Janssen and Mitchell Allen. Janssen founded Investopedia.com and grew it one of the largest investing sites on the Web. Allen is an author, speaker and the founder of LeadRival, the leading provider of pay-per-action advertising in consumer legal services.

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