C.A.G. Insights

Protecting your Business: Copyright vs. Trademark

Have you ever wondered about the difference between copyrights and trademarks?  Do you have a great product and wonder if you can do more to protect it from competitors?  If so, this short and sweet article is for you.

First, let’s look at copyrights.  The basic rule is fairly simple: to be copyrightable, a work must be fixed in a tangible form and have a modicum of originality.[1]  Of course, as with most legal issues, there are nuances that can complicate matters.  For example, you cannot copyright a fact or abstract idea, but you can copyright an original expression of the fact or idea.[2]  Similarly, you cannot copyright functional aspects of a work, although you can copyright features that are separable from the functional aspects.[3]

There are several advantages associated with copyrights. First, they can literally last a lifetime. . . or even longer.[4]  Also, infringement of a registered copyright can result in an award of attorneys’ fees to the copyright holder and entitle the copyright holder to statutory damages of up to $30,000 for infringement of a work.[5]

As for trademarks – a trademark is a word, name symbol or device that denotes the source of goods or services in interstate commerce.[6]  A related term, trade dress, refers to the use of the design or packaging of a product to identify its source.[7]  As with copyrights, the basic rule for trademarks includes some complications.[8]  For example, functional aspects of a design cannot be protected by a trademark.[9]  Marks that are confusingly similar to another mark are not permitted.[10]  Also, some marks can only be registered after they acquire secondary meaning, which means that the public recognizes the mark as denoting the source of a product.[11]

Some of the advantages of trademarks include that they can last forever if they are properly maintained,[12] infringers can be stopped from using your mark,[13] and the trademark owner can be entitled to damages and attorneys’ fees.[14]

As you can see, copyrights and trademarks are great tools for protecting businesses and products.  So, go ahead – secure the benefits[15] of registration today and put competitors on notice that infringement will not be tolerated.

If you are interested in obtaining copyright or trademark protection for your ideas or marks, contact our office.

By Brandon Zuniga

[1] See 17 U.S.C. § 102(a); see also Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345-46 (1991).

[2]  Asd See Feist, 499 U.S. at 349-51.

[3] See 17 U.S.C. § 101; see also Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1007 (2017).

[4] See United States Copyright Office, “Duration of Copyright,” U.S. Government Printing Office (2011), available at https://www.copyright.gov/circs/circ15a.pdf (last accessed Mar. 2, 2019).

[5] See 17 U.S.C. § 412, 504, 505.

[6] See 15 U.S.C. § 1127; see also Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S. Ct. 2753, 2757 (1992).

[7] See Two Pesos, 505 U.S. at 765.

[8] See, e.g., 15 U.S.C. § 1052(e).

[9] See 15 U.S.C. § 1052(e); see also Two Pesos, 505 U.S. at 775.

[10] See 15 U.S.C. § 1052(d).

[11] See 15 U.S.C. § 1052(e)-(f); see also Two Pesos, 505 U.S. at 769.

[12] See, e.g., United States Patent and Trademark Office, “Keeping Your Registration Alive,” Trademarks, https://www.uspto.gov/trademarks-maintaining-trademark-registration/keeping-your-registration-alive (last accessed Mar. 2, 2019).

[13] See 15 U.S.C. § 1125.

[14] See 15 U.S.C. § 1117(a).

[15] See, e.g., 15 U.S.C. § 1125.