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And, sadly, there are lawyers who confuse trademark with copyright and make complete fools of themselves and embarrass the profession.ġ. It’s so complex that many lawyers are confused about it and leave trademark matters to lawyers who specialize in that area. With that example, you can begin to understand that trademark law is very complex. Companies spend considerable amounts of money to own marks, often long before a product or service is created. Control of a mark is needed to maintain a brand image, establish the origin of particular goods or services, and create a psychological response in consumers when they see the mark. Trademarks are an important business asset. Of course, there may be other legal hurdles to using the name Lowe’s for a cupcake shop but it won’t come from the home improvement store. But, you could open up a cupcake shop called Lowe’s because the likelihood that anyone would think that all of a sudden this home improvement store branched out to cupcake shops is very low and the likelihood of confusion may be non-existent. But there is another home improvement store with the same name and consumers would likely be confused as to who the store belongs to. Sure, it’s your name and your life-long dream. Registering a trademark with the US Patent and Trademark Office will give the owner significant rights to prevent others from using the mark if it confuses or is likely to confuse the buying public about who the goods or services come from.įor example, even if your last name is Lowe you can’t open up a home improvement store and call it Lowe’s. Trademark law is handled by both federal and state laws.
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Unlike copyright, trademark rights are not automatic but, instead, come about from use. Like copyright, you can obtain legal rights in a trademark without registration. While those are the general categories, there are registered trademarks for shapes, sounds, fragrances, and colors. It helps if you put some identifying information on your work, especially if it is shared online and could easily be appropriated.Ī trademark is a single word, a short phrase, a design, or a symbol or a combination of these which identifies or distinguishes the source of the goods or services of one person/company from those belonging to another. You are not required to put the “circle c” on your work to designate you are staking claim to the copyright.
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And while something as short as a haiku can be copyrighted, a basic list of 20 websites or people would not be copyrightable without more than just a numbered list.Ī copyright is automatic, but registration with the US Copyright Office will give you more rights if someone were to infringe your copyright. While it is unclear if a tweet is copyrightable, it’s often much more clear whether a blog post, a photo or video, an original blog graphic, or an infographic is sufficiently original as to be copyrightable. The concept of a “ work of authorship” becomes more vague as new technology arrives. The 1976 United States Copyright Act generally gives the copyright holder the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords (lawyer speak for how music was distributed back in the day) of the copyrighted work, to perform the copyrighted work publicly, or to publicly display the copyrighted work. A “tangible medium” can be any of a host of things – a blog, a book (digital or paper), an infographic, a digital photo, a printed image, and so many other things. “ Fixed in a tangible medium” means that the work is able to be perceived, reproduced, or otherwise communicated. “ Original” means that an author produced a work by his or her own intellectual effort instead of copying or modifying it from an existing work. In general, US Copyright applies to original works of authorship fixed in a tangible medium. I’ve written quite a bit about copyright and what is protected with copyright. I’m here to help explain the difference between copyright and trademark and why knowing the differences is important for you as a business professional. But you don’t have to make their same mistakes. Sometimes, even lawyers misunderstand their differences. It’s not uncommon to find a news article that misuses copyright and trademark, as if they are interchangeable.