Protecting What's Yours. Do You Need a Trademark or Copyright for Your Biz?

At some point, we’ve all heard someone say, “I have this business idea, but I need to trademark it first before I tell anybody about it!” or “I don’t want to share my logo with the world before I copyright it because someone might steal it.”

In general, most people are aware that trademarking and copyrighting our information is a means of protecting our business ideas. But what’s the difference between the two, and how do we know if we really need to take these protective measures?

What’s the difference between copyright versus trademark?
In the most basic terms, copyright protects someone’s original work, while trademark protects words and symbols that distinguish one business from another. Copyrights are automatic; as soon as you create an original work, you are the copyright owner. Trademarks are established as a result of common use of the words and symbols in the normal course of business.

Think you might need these protections for your business? Let's break trademarks and copyright down in further detail.

What is a trademark?
According to the U.S. Patent & Trademark Office, “a trademark is any word, phrase, symbol, design or a combination of these things that identifies your goods or services.” In simple language, it’s what customers use to identify you in the marketplace and what makes you stand out from your competition.

What do trademarks do?
Trademarks can be used to protect both goods and services (when used for services, it is called a “service mark”) and do the following:
- Legally protect your brand
- Help people identify you as a provider of goods and services
- Prevents counterfeits and the fraudulent use of your brand

If I trademark a business name, do I own it?
When you trademark something, you have the rights to use that word or phrase with your products and services, but you don’t legally own the actual word or phrase that you trademark. Others can still legally use it.

If I trademark a logo or image, can others use it?
If you trademark a logo for your pet food business so that people can identify your brand by it, your logo is only protected from others in the pet industry. Other people in other industries can use a similar logo for products and services outside of the pet industry.

What’s the difference between a trademark and a registered trademark?
As soon as you begin using your trademark with your products, goods or services, you legally own your trademark. Your business activity alone using the trademark makes you the trademark owner. However, your rights as the owner of the trademark are limited at this level, because they only extend to the area or geography where you operate.

You will need to apply to federally register your trademark if you want nationwide rights and protections as the trademark owner. However, registering your trademark is not required in order for you to be considered the trademark owner.

Do I need to use the TM or the ® with my trademark?
Whether you have registered your trademark or not, you can use the TM, which represents the trademark symbol, next to the trademark. This helps both competitors and consumers know that you are staking a claim to the trademark. After you have applied for and been granted a federal trademark, you can use the ® to indicate that you have a registered trademark with the national rights and protections that accompany it.

What is copyright? According to the U.S. Copyright Office, copyright is “a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.” In simple language, it is protection for things that are written or developed by someone – the author – and expressed in a way that others can touch, hear, or see.

What does copyright protect? Copyright protects expression – the medium that is used to communicate something. It does not protect ideas, concepts, principles, procedures, systems, methods, discoveries or processes.

What can a person copyright? Any type of work, including books, illustrations, plays, movies, blog posts, paintings, sound recordings, poems, photographs, musical compositions, computer programs, architectural works, and more can receive a copyright.

You cannot copyright names, slogans, titles, short phrases. In some cases, these may receive protection as trademarks. You also cannot copyright familiar designs or symbols, ingredients, contents, or variations in typographic design (including font, color, or lettering).

What qualifies something for copyright?
First, the work must be original. This means it is created by a human author him/herself and that the work was not copied. There must also be a “spark” and “modicum” of creativity in order to be eligible for copyright. Second, the work must be fixed. This means that it is captured in a form that is sufficiently permanent so that it can be perceived, reproduced or communicated for more than a short time.

If I copyright something, do I own it?
As soon as you create an original work and fix it in a medium (writing, drawing, recording, photographing, etc.) you are the author and copyright owner of it.

If my employee or contract worker creates something for me, who owns the copyright?
Copyright law allows ownership through “works made for hire,” which allows employees to create original, fixed works and the employer to own the copyright as long as the work was created within the scope of employment. This also applies to independent contractor relationships.

How long does my copyright protection last?
Current copyright law indicates that works created on or after January 1, 1978 are protected by copyright for a term lasting the life of the author plus 70 years after the author’s death. If the copyright is owned by more than one person, the term lasts for 70 years after the last surviving author’s death.

If you are interested in protecting your work or your business brand, we encourage you to seek out a legal professional who can assist you with your copyright or trademark.

Disclaimer: The information provided in this newsletter or on this website does not, and is not intended to, constitute legal advice. Instead, all information, content, and materials made available by Texas Black Expo and its partners and affiliates are for general informational purposes only. Information provided may not constitute the most up-to-date legal or other information. Texas Black Expo makes no representation or warranty, express or implied. Your use of the information provided is solely at your own risk.