I meet many creative entrepreneurs during my office hours at 202Creates and, while we do talk about various legal topics, the most frequently asked questions I hear are about copyright and trademark – essentially, they want to know how they should best protect their work. Copyright and trademark are both concepts that fall under the broader category of “intellectual property.” Patents are also another oft-referred-to type of intellectual property, but we’re just going to stick with copyright and trademark for our discussion here.
Let’s begin with some basic definitions:
Copyright protects “original works of authorship” that are fixed in a tangible form of expression.
A trademark is a word, name, symbol, device, or any combination of these that is used (or intended to be used) to indicate the source of a good/service OR to identify or distinguish the good/service of one seller from another.
Here are some examples of what can be copyrighted versus trademarked:
One very practical thing to know about these forms of intellectual property protection is when the protection begins. Notably, both copyright and trademark protection exist even if you have not registered them with the U.S. Copyright Office or U.S. Patent and Trademark Office (USPTO):
Copyright protection exists automatically from the moment an original work of authorship is fixed in a tangible form.
A mark (or property that you use or intend to use to identify your business as the source of certain goods/services) can be protected as a common law trademark once it is used in commerce.
Additionally, even without registration, you can put the public on notice that a work or mark is protected by copyright or trademark by using these familiar symbols:
The “C” in a circle (©) represents the copyright symbol. A copyright notice contains the following elements:
For example: In Michelle Obama’s book, Becoming, the copyright notice reads “Copyright © 2018 Michelle Obama” and on Instagram’s website, the copyright notice at the bottom reads, “© 2019 Instagram”.
The superscript symbol “TM” indicates a mark that is being used as a trademark, but is not a registered trademark (i.e., a common law trademark). One difference between copyright and trademark symbols is that the copyright symbol © is the same symbol regardless of whether it is used before or after copyright registration. With trademark symbols, there’s a difference: TM may be used to indicate unregistered common law trademarks and the “R” in a circle (®) symbol can only be used once a trademark has been properly registered.
The symbol is typically placed:
One important caveat to beginning to use a mark in your business is that you should do your research to ensure that no one else is already using the exact mark or a mark that might be considered “confusingly similar” which may lead someone to confuse the source of a good/service. For example, calling a new program “Lawyer in Your Pocket” may not be advisable if an existing business has the registered trademark “Pocket Lawyer” and provides similar services. People could easily confuse the two, which could lead to an infringement claim.
Ok, so you’re probably asking yourself: If I have copyright and trademark protection without registering, what’s the point of registration? Well, the answer in both cases is that registration provides you with stronger protection and additional rights:
My intellectual property protection conversations with creative entrepreneurs during office hours usually end around here. While there’s a lot more to know about copyright law and trademark law, this basic information is often a good starting point. At the very least, they leave knowing that they can start using the © and TM symbols to help protect their works and marks respectively – now so do you.
If you’re interested in copyright or trademark registration, contact me here to set up an initial consultation.