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WHAT'S THE DIFFERENCE BETWEEN COPYRIGHTS AND TRADEMARKS?

HandelontheLaw.com Staff Writer

Tuesday, February 21, 2006



WHAT'S THE DIFFERENCE BETWEEN COPYRIGHTS AND TRADEMARKS?

Let's face it, we live in an information world - bombarded with media and messages. In this new world, the evil cabal of lawyers that rule the world figured that they have to have a piece of the ownership pie in this new information world. That's why they came up with things like copyrights and trademarks.

Actually, outside of the hands of overzealous entertainment attorneys, copyrights and trademarks have some good benefits to the little guy like and you and me too. But some people get confused between the concept of "copyright" and "trademark" and mistakenly use the two terms interchangeably. There is a big difference between the two.

The world of copyright and trademark law can get maddingly complex, but here is a bare-bones starting guide to help you learn the basic differences between these concepts.


The purpose of copyrights vs. trademarks

Copyrights were created in order to give economic incentives to people to make creative works. The theory is that few people would put the time and effort into writing a novel, making a film, or creating paintings and pictures if such works could simply be freely copied and distributed by others. To create such incentives, the authors of creative works are given exclusive rights (in essence, limited monopolies) to make copies of their work as well as distribute and perform or exhibit them. Such rights can be sold or transferred to others as the author desires. These rights last for a limited time, and there are some exceptions to the exclusive rights (including what are known as "fair use" rights for others to use the work in limited circumstances without the author's permission). For the most part though, the owner of the copyright retains exclusive rights over the creative work.

Trademarks were created as a legal concept in order to help prevent consumer confusion in the marketplace. Trademarks are marks that can be applied to both goods and services. If you use a certain mark to identify a particular brand of goods or services, other people can be prevented from using the same mark in such a way that could potentially confuse consumers seeking out such goods or services.

For instance, let's say that top-rated, award-winning, radio talk show host Bill Handel invented his own brand of cola drink. In order to help boost sales, he decides affix each bottle of his cola with a sticker that says "Coke". This would be a violation of trademark since many consumers would think that they are buying Coke when in fact they are buying Handel cola. We can talk about Coke. And since the word Coke alone isn't copyrighted (and frankly can't be copyrighted for a variety of reasons), we can print the word "Coke" in order to communicate about the product. However, if we were to attach the word Coke to any product in such a way that it would likely make consumers think it was manufactured by the Coke-a-Cola company, then we would be violating their trademark. Get it? If we lived in a world where the actual word "Coke" could be copyrighted, then we would likely have to get permission from the Coke-a-Cola company (or whoever else might own the copyright) simply to print the word in an article such as this one. But that wouldn't be very conducive for free speech - which is why there are limits on the kinds of things that you can copyright and how they are enforced.


What can function as a trademark?

Trademarks aren't just limited to words. Other kinds of marks can serve as a trademark. Let's go back to our cola example. Let's say that Bill Handel's cola doesn't say "Coke", but instead says "Handel Cola" (with the catchy phrase "Handel-a-Cola" underneath it). But let's also say that all of the Handel soda cans are bright red with silver lettering stating "Handel Cola" in the same kind of font lettering that Coke cans use. Handel Cola would still likely be infringing on Coke's trademark since many consumers identify Coke by its red cans and distinctive silver letters (apart from what the letters might actually say). There would still be the risk of "initial" consumer confusion by the color and font scheme used by Handel Cola. People might not read the labels carefully, and just assume that they were picking up a six-pack of Coke because it's in a red can. The point here is that trademarks can come in a variety of forms and are not just limited to product names or catchphrases.

Sometimes, a creative work can be copyrighted and also simultaneously function as a trademark. This is where some people might get confused.

For instance, let's say that you paint an abstract work of art. You would then have the copyright on that art. But now let's say that wine company X wants to pay you money in order for them to use your painting as their company logo on their wine bottles. So now your painting is associated with Wine X as a trademark for their product. Anytime somebody sees your painting, they now think of Wine X.

But now let's take it one step further. Suppose it is discovered that wine company Y is also using your artwork on their wine bottles in an unauthorized fashion. Wine company Y would be liable to you for copyright infringement since it made copies of the painting image that you created. However, it would also be liable to the Wine X company for trademark infringement since consumers might mistakenly think that the Wine Y that they purchased is actually Wine X.

Even if your artwork was used without your permission on another product other than wine (i.e, a T-Shirt, mug, car, etc.) you would still have a claim for copyright infringement. The X Wine company may also still have a potential claim for trademark "dilution" - the theory that a using a unique mark on other products might blur consumer recognition of the original product that it was used for. Trademark "dilution" (i.e., the same mark on a wine versus a cap) can be harder to prove than direct trademark infringement (i.e., the same mark on two competing bottles of wine), but it is still a viable claim if the same mark or logo is involved.

So now that you know some of the basic differences between copyrights and trademarks, let's further explore some of the differences in how they are utilized.


What kinds of marks can be used as trademarked items versus copyrighted works?

Generally, trademarks are limited to words, symbols and/or phrases. Copyright can apply to any form of artistic work that is in a "fixed' medium of expression (visual art, writings, photographs, recordings, musical works, etc.). Once again, a trademarked symbol can be copyrighted as well. However, copyrights generally require a certain degree of originality that isn't necessarily required for trademarks. To illustrate, let's use our wine example again. Suppose a wine company uses a simple blue dot as its trademark. It could certainly choose to have a blue dot to identify its brand of wine - but it wouldn't likely be able to copyright its blue dot since you can't reasonably expect other people around the world to stop painting blue dots. You can prevent them from using similar blue dots on other competing brands of wine (in other words, as trademarks), but you can't stop them from using blue dots altogether. If you use a more complex and unique abstract painting as your trademark though, then the painting is likely original enough to warrant copyright protection. The degree of originality required for a copyrighted work isn't particularly high, but hopefully you understand that there is an originality requirement for copyright that doesn't exist for trademarks. Common everyday symbols can still be used to identify a particular brand of goods, no matter how simple they may be.


When do the protections begin for copyrights versus trademarks?

Copyright protection begins whenever an original work is completed in a "fixed" medium. The law defines "fixed medium" fairly broadly to encompass any medium that is sufficiently stable enough to allow the work to be "perceived , reproduced or otherwise communicated for a period of more than transitory duration." In other words, building a sand castle by the beach might not qualify for copyright protection since it will be quickly washed away by the tide or eroded by the wind. However, a photograph of that same sand castle would qualify for copyright protection since the photograph is a "fixed" medium of expression.

Trademark protection can begin as soon as the mark in question is actually used to identify goods or services.


How long to the legal protections last for copyrights versus trademarks?

Let's deal with the easier case first: Trademarks. A trademark's protection can last as long as the mark remains in continued use to identify a good or service. A trademark could thus theoretically last for an indefinite amount of time (assuming that the corresponding good or service that it identifies also lasts indefinitely).

The length of copyright protections are a different matter. The length of terms for copyright protection have changed over the decades. The basic rules of thumb are as follows:

As of January 1, 2006, any work that was published in the U.S. before 1923 likely has an expired copyright and is now in the "public domain" (meaning that it can be copied freely without permission from the copyright holder).

For most newly created works, a copyright will last the entire life of the author/creator of the work, plus an additional 70 years. If a corporation is considered the author of a work, then the copyright will last either 95 years from publication, or 120 years from creation (whichever is shorter). In fact, these timeframes apply to most works that were created anytime after January 1, 1978.

The real tricky part is determining the length of copyrights for those works created before 1978, but haven't yet necessarily fallen into the public domain. Such works could have a copyright of up to 95 years - but it may be considerably shorter based on a number of factors including: Was the work actually published? Was the copyright registered? Was the initial copyright registration term ever renewed? etc.



For more details about copyright durations, or other aspects of copyright law, please consult a copyright attorney or visit the U.S. Copyright office at www.copyright.gov.

More on trademark law can be learned by visiting a trademark attorney or visiting the U.S. Patent and Trademark website at www.uspto.gov.



Copyright and trademark law can be a very complex and daunting, with various nuances to often consider. However, this should hopefully give you a "bare bones" understanding of some of the fundamental differences between copyrights and trademarks. You can now at least go and impress your date or loved one, confident in the knowledge that you now know the difference between a "copyright" and a "trademark".



[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]


Source: Handelonthelaw.com Staff Writer

Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.





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