By Xavier Morales, Esq.
As your small business grows, some questions naturally arise. Among these will likely be the issue of copyrights and trademarks. What are they? Do you need one, or both? When’s the right time to get one? What do they cost? Let’s look at the differences between copyrights and trademarks, and unpack what you might need and when.
Copyright vs. Trademark
Before examining which your business may need, you must first understand the difference between copyrights and trademarks. They are often confused, however these two types of legal protection are quite distinct.
Copyrights
Copyrights were established in the United States via the Copyright Act of 1790. Since 1897, the U.S. Copyright Office, a department of the Library of Congress, has handled copyrights. Prior to that, district courts and the Library of Congress handled them. Findlaw.com gives a good, succinct definition of copyright here:
Copyright is a form of intellectual property protection provided by the laws of the United States. Copyright protection is available for original works of authorship that are fixed in a tangible form, whether published or unpublished. The categories of works that can be protected by copyright laws include paintings, literary works, live performances, photographs, movies, and software.”
Trademarks
The United States Patent and Trademark Office (USPTO) handles trademarks and patent registrations. They also handle all renewals and disputes. According to their website:
A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.”
In short, a trademark is used to protect things like company names, logos, and slogans so that there is no confusion about who is providing a product or service. Keep in mind that the trademark law differs from state to state in the US and if any issues arise you should have a representative who’s well acquainted with the laws of that state. For example, if you are living in San Diego, California, your best defense will be provided by a San Diego trademark lawyer.
Figuring Out Your Needs
Once you understand the differences between copyrights and trademarks, the next step is examining your business needs. If you are a locksmith, it’s unlikely that you will need to worry about legal protection for paintings or a novel. However, nearly every business operates under a company name (save the sole proprietorships that simply operate under the owner’s name.) As you may already have noticed, needing a copyright or trademark depends heavily on what business you are in, and what product or service you are providing.
Could You Need a Copyright and a Trademark?
It’s entirely possible that you may need both a copyright and a trademark. For example, let’s suppose you own a small business that creates original, high quality photos that other website owners can license. The copyright for each photo you produce inherently belongs to you. However, unless you officially register the piece with the U.S. Copyright Office, you will not be able to file a copyright infringement lawsuit against anyone who uses your image without the proper license.
While the individual photos are protected by copyrights, the name and logo of your business would instead be defined as trademarks. Again, as with a copyright, you do have some level of “free” legal protection. However, in the case of trademarks, this protection primarily only covers your local geographic area. If you’re located in San Francisco and have named your business “Sarah’s Stock Photos,” there is nothing legally preventing anyone else from opening a “Sarah’s Stock Photos” in Seattle.
In this particular example, given the ease with which digital assets like photos can be shared or stolen, it is highly likely that officially pursuing both copyrights and trademarks would be in your best interest.
Making Your Choice
As we’ve examined here, going through the official registration process for copyrights or trademarks depends heavily on what type of business you run, and how much protection you need. You will need an officially registered copyright if you want the right to pursue a copyright infringement case against anyone illegally using your authored works. If you want to ensure that no one else uses your business name, regardless of whether they are located in your local area or not, you’ll need to go through the trademark registration process. If you do decide to move forward with either option, you would be well served by seeking the advice of an attorney.
