I often get this question when folks are considering protecting either their brand name or some unique work product, and the individual asking the question doesn’t know how what to do next.
Let me start with the definitions:
Trademark: A “mark” that identifies a source for a particular good or service. The “mark” can consist of a distinctive word, design, color or sound that is not descriptive, and is not “confusingly similar” to a pre-existing trademark for a similar product or service. There are many other limitations and requirements, so consult with a trademark attorney to be sure your mark can qualify as a trademark.
A trademark cannot protect ideas, systems, or methods of operation, although a trademark can protect a mark that identifies the source of a product or service embodying these things.
Copyright: A legal right granted to an author of literary, dramatic, musical or artistic works, such as poetry, novels, movies, songs, photos, illustrations, computer software, and architecture to maintain exclusive right to reproduce, prepare derivative works, distribute copies through sale or other transfer of ownership, show or display publicly, as well as the right to authorize others to exercise these exclusive rights.
Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed, nor does it protect names, titles, slogans, or short phrases.
When Do You Want a Trademark?
You want a trademark when you are trying to protect the name or brand of your product or service.
If you have a unique design you want to put on the front of a t-shirt, that would not represent a trademark unless that unique design is going to be placed on the tag and packaging.
Trademarks are the things that go on packages, on tags, labels and advertisements to identify your products or services are provided by you or your company, and not some third-party.
When Do You Want a Copyright?
You want a copyright when you are trying to protect some unique design, work of authorship or copyrightable expression. A copyright will permit you to prevent others from copying your material, as well as creating “derivative works” of your material.
If you are a business or company, note that vendors and contractors will own the copyrights of the material that produce for you, unless you have a contract that assigns such material back to your company and a “Work Made for Hire” clause. If you don’t do this, you run the risk that your contractors or vendors will resell the work product you paid for to your competitors, or worse, hold you hostage when you are trying to update or improve what you original paid for (i.e. such updates or improvements are called “derivative works” and you don’t have the right to do that, unless you own the copyright or are otherwise granted permission to do this).
