Copyright And Trademark: What Should You Know

Intellectual property is a contention field that can be difficult to understand if you don't have legal experience. However, it is vital to be able to navigate the legalities around intellectual property appropriately. Being able to effectively navigate intellectual property can end up being the difference between having to wage a tough court battle to protect your legal interests and quietly enjoying the fruits your creative labors bear. Copyrights and trademarks are two of the intellectual property rights, which are the most frequently confused. In commercial retail, understanding the differences between copyright and trademark is essential. After all, if you're in the business of creating unique goods to put out into the commercial world, you need to know how to protect your rights. 

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Copyrights Vs. Trademarks

Both copyrights and trademarks are legal protections, but they protect distinctly different areas of intellectual property. Copyrights generally are involved with safeguarding intellectual or creative works, while trademarks apply to commercial phrases, names, and logos. People who create literary, musical, dramatic, artistic, and certain other kinds of intellectual works (such as software code or history books) typically deal with copyrights. Trademarks are in place to protect the use of a company's name, brand identity (like logos), product names, and slogans. The two protections are two entirely distinct legal entities and are managed by two separate offices in the federal government. Copyrights fall under the U.S. Copyright office's auspices, while trademarks are granted by the U.S. Patent and Trademark Office. 

What Are Copyright Protections?

Between the two categories of intellectual property protection, copyright protection is a lot more clear-cut (although not necessarily more straightforward). In the United States, copyright protection is explicitly outlined in the constitution. Article I Section 8 of the U.S. Constitution is known as the "Copyright Clause," where the country's founding fathers formally delineated a group of rights that protect authors and their different original expression forms. If this clause sounds broad or complicated, that's because it is. 

While the founding fathers' original intention was to safeguard the intellectual property inherent in creative works, the vagueness of the copyright clause leaves a significant amount of copyright law up to individual interpretation. Since this clause was established and the United States Constitution was written, numerous lawmakers and courts have tried their hand at clearly defining the laws on copyright protection. Not only have lawyers and courts been battling it out for generations, but scholars have also dedicated decades and countless volumes to making some sense out of the complex web that has developed throughout the years. 

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Building Blocks Of Copyright Law

Luckily for us, there are a couple of basic building blocks that form the foundation of the actionable information somebody needs to understand his fundamental rights under copyright


Copyright protection refers to how the copyright holder of the work in question retains exclusive rights to display, print, distribute, and perform the work. In the digital age, the holder has exclusive rights to transmit and publish the work on the world wide web. 


To be granted copyright protection, a work has to be original. 

Tangible Medium

Another stipulation under copyright law is "tangible medium." For a work to be copyrighted, it must be "fixed in a tangible medium of expression." This may sound very technical, but it is an essential component of copyright law and something creators need to understand. For a work to be "fixed in a tangible medium of expression" means that the work needs to be established in a fixed form, like a map, book, chart, print, dramatic work, film, sculpture, computer program, or sound recording.


Copyright lasts for the author's lifetime or creator of the material in question, plus an additional seventy years, and now extends to display performance and web transmission. 

What Are Trademark Protections? 

Congress created "trademark protections" in 1946, making the legal protections of trademarks a lot more recent than copyrights. While commonly seen as protection for companies and their commercial interests, trademarks were also seen as a protection for consumers when they were legislated. 

Trademarks originally came out of the concept that consumers need to be protected from confusion when looking for goods in the marketplace. Because the mark, or brand, of a product, establishes familiarity with consumers, using that mark or symbol on a product that is not sourced from the original producer would confuse and mislead consumers. Trademark protects the buyer's interest by prohibiting the use of an established brand or mark by a person other than the holder of the trademark. To establish the exact boundaries of specific trademark protection, a court will look at how likely a consumer is to be confused by using the brand or symbol in contention. 

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Trademark Application And Review Process

In the United States, the trademark registration process is comprehensive, and the U.S. Patent and Trademark attorneys are known for scrutinizing applications closely. The U.S. Patent and Trademark office ensures that an application has the necessary supporting materials. An examining attorney determines if the proposed mark or symbol contends with any current trademarks. If it is too similar to other kinds of marks, then the application is rejected outright or returned to the applicant with requested changes. This means that if you are thinking about a trademark application, doing a trademark search is probably a smart investment. A trademark search ensures that your proposed trademark is not similar to other federally approved trademarks. A thorough examination can even extend beyond the federal trademark database for the 50 states and include filings in Canada, Europe, and more. 

Areas For Interpretation

There is one distinct grey area between copyrights and trademarks where law and precedent overlap- when it comes to phrases and short words. Phrases are typically considered to be under trademark law, but they can be copyrightable. If the U.S. Patent and Trademark Office and the courts are convinced that the items in question show sufficient originality and creativity, copyright protection may be granted. Copyright and trademark are important protections, which can be effectively used to protect artistic creations and products when adequately understood. It's essential to know the ways intellectual property protections function and know the scope of your rights, as this knowledge can help you make the most of your work and prevent expensive legal battles. 

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