Differences between Copyright and Trademark
Contents
Copyright and trademark comparison[edit]
Copyright and trademark are distinct forms of intellectual property protection defined by separate statutes in the United States. Copyright is governed by the Copyright Act of 1976 (17 U.S.C.), which protects original works of authorship fixed in a tangible medium of expression.[1] Trademark is governed by the Lanham Act (15 U.S.C.), which provides protection for words, names, symbols, or devices used in commerce to indicate the source of goods and distinguish them from those of others.[2] While a single product may be protected by both copyright and trademark, the legal standards for obtaining and enforcing these rights differ.
Comparison table[edit]
| Feature | Copyright | Trademark |
|---|---|---|
| Primary Statute | Copyright Act of 1976 | Lanham Act |
| Subject Matter | Creative works (books, music, movies, software, art) | Brand identifiers (names, logos, slogans, trade dress) |
| Purpose | Encouraging the creation of expressive works | Preventing consumer confusion in the marketplace |
| Standard for Protection | Originality and fixation in a tangible medium | Use in commerce and distinctiveness |
| Duration | Typically life of the author plus 70 years | Potentially perpetual if used and defended |
| Registration Requirement | Rights exist upon creation; registration required for litigation | Rights can exist under common law; federal registration provides broader protections |
| Infringement Standard | Substantial similarity to the original work | Likelihood of confusion among consumers |
| Common Symbol | © | ™ (unregistered) or ® (federally registered) |
Protected subject matter[edit]
Copyright protection applies to works of authorship including literary, dramatic, musical, and artistic works. This includes computer software, architectural designs, and motion pictures. The law requires that a work possess at least a minimal degree of creativity and be recorded in a physical or digital format. Facts, ideas, systems, and methods of operation are excluded from copyright protection, though the specific expression of an idea may be covered.[3]
Trademark law covers elements that identify the source of a product or service. This includes brand names like "Apple," logos such as the Nike "swoosh," and slogans. In some cases, trademark protection extends to "trade dress," which involves the physical appearance or packaging of a product, such as the shape of a Coca-Cola bottle. Trademarks are categorized by their distinctiveness, ranging from fanciful or arbitrary marks to descriptive marks that require a "secondary meaning" to be protected.[4]
Duration and renewal[edit]
The duration of protection is a significant difference between the two systems. For works created on or after January 1, 1978, copyright protection generally lasts for the life of the author plus 70 years. For "works made for hire," the term is 95 years from publication or 120 years from creation, whichever is shorter. Once a copyright expires, the work enters the public domain and may be used by anyone without permission.
Trademarks do not have a fixed expiration date. Federal trademark registrations must be maintained through the filing of a Section 8 Declaration of Use between the fifth and sixth years after registration, and a renewal application every ten years. As long as the owner continues to use the mark in commerce and prevents it from becoming a generic term, the protection remains in effect. Failure to defend a mark against unauthorized use can lead to "genericide," where a mark loses its legal protection because it has become the common name for a category of products.[5]
References[edit]
- ↑ U.S. Copyright Office. "Copyright Basics." Circular 1. 2021.
- ↑ U.S. Patent and Trademark Office. "Trademark, Copyright, or Patent?" 2023.
- ↑ 17 U.S.C. § 102.
- ↑ Supreme Court of the United States. "Two Pesos, Inc. v. Taco Cabana, Inc." 505 U.S. 763. 1992.
- ↑ U.S. Patent and Trademark Office. "Maintaining a Federal Trademark Registration." 2022.
