Today I wanted to talk about the difference between trademark and copyright, and give a little information on each. Unfortunately, due to media and common misconception, these two are easily confused.

First, is my favorite, copyright. A copyright is a protection for an author who creates a work and expresses it in a tangible medium.  The author can be a writer, a musician, a poet, a sculptor or an architect. A copyright is protected immediately after it is fixed in a tangible medium, which mean your protection starts when you make a hard copy of the work, such as a recording, written version, or blueprint. This is referred to as a common law copyright, compared to a registered copyright.

A registered copyright is a work that has been filed with the US Copyright office and has been accepted and kept on file. Much like real estate and loan filings, this provides others who work in this area, a chance to research and discover previous protections and established rights before they interfere. If a copyright is registered, then somewhere, the printed work will have the name of the author, the date of publication and the symbol ©. Common law copyrights have no symbol or indication of the protection.

This symbol is important to a infringement case. Later, the infringer cannot claim that they were an innocent infringer. An innocent infringer means when they improperly used the protected work, they had no knowledge that the work was protected or protectable. Without previous knowledge of the protection, the court will not punish the infringer as harshly. Ignorance is not an excuse, but it will give a lesser punishment. However, if the symbol is present on the work, then the infringer gets no special treatment because even if they did not know it was protected, they should have known.

Copyright protection lasts for the life of the author plus 70 years, or 95 years total from publication, or 120 years total from creation. There is no need to refile or update the registry outside of changes. Once registered, the protection lasts until the clock runs out and the US Copyright office moves the registry to the public domain classification.

Next, is trademark, one of the most commonly mistaken laws. Trademark does not protect intellectual property of a business. It protects the customers of a business, from being deceived in their purchases. A trademark or service mark is a word, phrase, or symbol/design that identifies the producer of the good or service and distinguishes one company from another. Trademark covers brand names, slogans, and logos. They want to protect a business from another business pretending to be them and fooling the customer to buy from the second business.

Trademarks have a similar filing system as copyrights. However, a trademark must be involved with an actively working business and must comply with all of the registry requirements. The Copyright office expects some works to be similar but not infringing. Whereas the Trademark office wants to avoid overlap and expects a strict analysis of the mark, its protection and others like it. But like copyright, the national Trademark registry provides notice to other businesses and evidence at trial. A trademark differs from a copyright in that the protection can continue forever, as long as the business is running and the mark is being used and the owners keep it registered and up-to-date.

Like copyright, trademark has a symbol to indicate a protection, but there is some variation on which symbol to use and their respective meanings. First, a trademark that has not been registered can still receive protection. This type of trademark uses a small ™ next to the word, slogan, or phrase. However, the protection for this type of trademark is so small compared to a registered one, that I have overheard lawyers say that a TM trademark is not registered and does not matter in their circumstances.

The important symbol is for a registered trademark, which is ®. This is the ultimate protection and means that the US Patent and Trademark office have on their record, proof of the trademark’s protection.

Lastly, I wanted to fix what I believe is the most common misconception on these two topics. Copyright and Trademark cannot be used as verbs. Copyright receives protection as soon as it is created and and formed, so it would be “copyrighted” as long as it was in existence. By saying you copyrighted it, you are only saying that you created it. Trademark is protected when the business established the word, phrase or logo, so its “trademarked” when its used.

Many people use these verbs to describe the registry process. When they say they have copyrighted or trademarked something, they mean they registered it with the appropriate office. I believe this issue could easily be solved by replacing these made-up words with “registered the copyright or trademark”. I believe so much confusion comes from how these words are used, but to say its registered gives the listener a notice to go to the record and research the protection. This way, people will not express such an outcry, when they find out Taylor Swift is trademarking her catch-phrases.