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Protecting Copyrights vs. Protecting Trademarks

Copyrights and trademarks are protectable intellectual property assets but are considerably different from each other and how they are protected. However, both copyrights and trademarks can be registered, protected, licensed to others, and infringed — and when infringed, may result in the infringer receiving a cease-and-desist letter and lawsuit in federal court.

Copyrights protect original creative works, such as music, movies, books, art, and software. As soon as you create something, you have basic copyright protection and you don’t need to formally register your created work with the federal government in order to have that protection. Copyright protection also extends internationally since the United States is a signatory to the Berne Convention, which means your creative work is protected in many countries without the need for separate registrations. Although you can register your copyright with the US Copyright Office (which is part of the US Library of Congress), generally registration of a copyright is a necessity only when you want to sue someone in federal court for copyright infringement. But since it typically takes about a year for the registration to be completed by the Copyright Office, it may be highly inconvenient to await registration before litigation can be commenced against a copyright infringer. Largely thanks to US Congressional lobbying efforts by Disney over the past decades to protect its copyrights, the duration of copyright protection in the United States is very long. Generally, a copyright lasts for the duration of a creator’s lifetime plus 70 years, and for a copyright of a corporation, the protection lasts for 95 years from publication or 120 years from creation, whichever is shorter. Thereafter, the creative work is in the public domain. Creative works in the public domain are not subject to copyright protection and can be used freely and without attribution. Note, however, that the concept of “fair use” of a copyright such as for education, criticism or parody, is only a defense to copyright infringement, so unless something is very clearly “fair use” it is unwise to rely on that defense when using another’s copyrightable work.

Trademarks generally protect brands, logos, symbols, taglines, and phrases that represent the origin of products or services. Some famous trademarks include the Nike swoosh, the letters IBM, the color red and sole design of a woman’s stiletto by Christian Louboutin and the word Kleenex. Trademarks must be registered with the United States Patent and Trademark Office in order for a trademark holder’s rights to be protected across the United States. However, for trademark protection outside the US, a trademark holder would need to separately apply (likely via the Madrid Protocol or the Paris Convention)), since each country governs its own trademarks and can reject or approve registration based on that country’s laws. Trademark registration also helps deter others from using a confusingly similar mark for similar goods or services in the country or countries where the mark is registered. Trademarks can last indefinitely, as long as they are actively used and renewed.

To acquire a copyright, you simply create an original work of authorship, by affixing the work to a tangible medium — such as by writing words on a page, saving or printing a photo, painting a canvas, or recording audio of a musical composition, among other ways. You can show others that you believe your work has copyright protection by using the © symbol, the year of creation, and your name or the name of your business, for example, “© 2023 Peter Kraybill.” Once that original work is created, you may consider registering it with the copyright office, and registration is fairly simple to carry out at – although choosing the “best copy” of the work, the appropriate category of registration, and description of the work can be complex. Works that do not possess a minimum level of creativity are not copyrightable, such as facts, ideas, concepts, everyday phrases, works created by the US federal government, functional aspects of objects or designs, blank job applications and other utilitarian forms that are not creative, and works that lack originality such as exact copies of existing works or public domain works.

To acquire a trademark, you must apply to the USPTO, and show that you are actually using the mark in commerce across state lines or in “interstate commerce.” Interstate commerce means the mark is used in connection with the sale or transport of goods or rendering of services between persons in different states. The word or phrase to be trademarked must do more than simply describe the goods or services that are sold using the mark (such as an arbitrary or invented word) and it cannot already be in use by another mark holder to sell similar goods or services. Once the trademark is registered with the USPTO, you must continue to actively use it — unchanged from the original version and use of the trademark you had registered — and you also are required to enforce your trademark rights, meaning that you must confront others who are using a confusingly similar trademark to sell similar goods and services as yours. Trademark infringement occurs when someone uses a similar mark for similar products or services to those of a registered trademark holder, and, in response, the trademark holder should take legal action to protect its brand. A trademark holder has an obligation to protect the consuming public from infringers who could confuse the public about the origin of goods or services that are not being sold by the rightful trademark holder.

Both copyrights and trademarks can be licensed for others to use. Copyright licenses are common in the music industry, for example, when a bar or restaurant pays for permission to play a copyrighted song. Trademark licenses are also common, but are most frequently encountered in franchise circumstances where a franchisor such as McDonald’s licenses a brand to franchisees as part of the franchise arrangement or by distributors of products made by trademark-holding manufacturers such as Ford Motor Co. A key component of a trademark license is that the trademark holder must impose quality control standards, or the trademark holder risks losing the trademark for the lack of quality control.
The laws governing copyrights and trademarks are constantly evolving, so it is advisable to have capable counsel in properly evaluating, registering, protecting, and enforcing rights in and to copyrightable work and trademarkable brands.

(Peter Kraybill leads GKH’s Corporations and Organizations practice group, and counsels clients on strategic decision making in the areas of real estate, corporate law, succession planning, estate planning, and intellectual property. He has served as Chair of the Intellectual Property Section of the Pennsylvania Bar Association and also President of the Benjamin Franklin American Inn of Court for intellectual property attorneys in the greater Philadelphia region. Before joining GKH, Peter worked for an international law firm in the areas of intellectual property, corporate matters and international arbitration.)