In my practice and social conversations, I’ve found that there is a lot of confusion over what copyrights and trademarks are and what the differences between the two are. If you are a freelancer or small business owner, this is information you need to know.
Trademark and copyright law impact every business, whether you know it or not. The law in these areas impacts the actions your business can legally take and what your business can do to protect itself from unscrupulous competitors who might try to steal business materials or even names.
The law can be complicated but today we are just going to start with the fundamentals: understanding what a copyright and a trademark are.
A copyright grants a person legal protection for their creative works like writing, painting, photography, and even computer software. A copyright holder can prevent others from making COPIES of (get it) and using their work. Copyrights are frequently analogized to a monopoly over the creative work.
Copyrights are obtained automatically and registration is not required. However, there are still reasons to use a copyright notice on the creation and register certain works. Copyrights expire after a set number of years. There are exceptions to copyright law, most notably, the fluid “fair use” doctrine.
A trademark is a symbol, design, mark, or word that recognizably identifies the source of the goods or services as distinct from others. Trademark owners can prevent others from using their mark in a manner that is likely to confuse a consumer about the source of the good or service.
The best way to understand Trademarks is by example. Think of a rounded yellow “M” on a paper bag of the size that would usually hold a cheeseburger. What do you think is in that bag? What company is responsible for the bag and its contents? It’s a McDonalds cheeseburger, right? (If that wasn’t your answer, it’s time to get out of the house more!) That yellow “M,” also referred to as the McDonald’s arches, is a Trademark. When it is on a product, consumers know that product comes from McDonald’s, not a competitor like Burger King. McDonald’s can prevent its competitors from using that mark.
Trademarks are acquired through use. They are also maintained through use. Trademarks can be lost through non-use, but unlike copyrights they don’t expire after a set number of years. As with copyrights you do not have to register a Trademark, but in most cases it is advisable to do so.
Congrats! You now know more than many about intellectual property law.