Tips from the Licensing Lawyer | Copyright vs. Trademark | Attorney Advice

Terence Church, Attorney at Law

Terence N. Church & Associates

www.TChurchLaw.com

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Copyright v. Trademark

I am often asked about copyrighting a company name or a tag line. The question suggests an understandable confusion about the roles of copyrights and trademarks.  They are in fact very different tools.  Understanding the difference can help you protect your valuable intellectual property.

Copyright applies to expression of an idea.  This can be words on a page, a picture or photograph, technical drawings, video, music, or any other form of expression you can imagine. Anything that expresses a thought or idea is subject to copyright protection. The key work is “expresses”.  Copyright does not protect the idea or thought itself, but only the way it is expressed on paper, canvass, film or recording medium.  If you own a copyright in a particular work you have a legal right to stop anybody else from copying that work or from creating a derivative of it.   You have no right to prevent another person from coming up independently with her own expression of the same idea or thought you had in mind.  There are some exceptions to your right to prevent copying, but that’s generally the way it works.  The interest the copyright seeks to protect is the uniqueness of your work and thus its value.

Trademark, or servicemark, is different. A trademark is a designation of origin of your product or service, and carries with it your professional or business reputation.   Trademarks tell people that a certain product comes from you. If you have a reputation that is favorable, that trademark has value. You can prevent others from suggesting they are you and from trading on the value of your reputation by using your trademark.  Think of the Golden Arches.  As soon as you see them, you know what you can get at that store and you know what the quality will be.  McDonalds has spent a lot of money building that image and reputation, and they spend a lot of money protecting it.

There is some overlap between trademark and copyright, particularly in the area of slogans or taglines.  Think of the slogan that goes with Goldfish crackers, “The snack that smiles back.”  That both expresses an idea (copyright) and makes you think of the product (trademark).  Both the rights are independently protecaible in a court of law.

The difference is important because they are different rights and protect different interests.  If you treat a trademark as a copyright, you could lose your trademark rights, and visa versa.  It is a good idea to consult your lawyer if you are not sure what you have, especially if you plan to spend money on it to build your business.

By Terry Church.  Terence N. Church & Associates works with companies in securing and protecting trademark, copyright and trade secret intellectual property rights. 

Contact:  Terry Church (925)302-6642

email Terry@TChurchLaw.com

www.TChurchLaw.com

Terry Church was previously with the law firm of  Brown, Church & Gee.