How simple it is, when you hear intellectual property attorneys describe the difference of both: copyright and trademark laws.
Copyright covers creative works of expression fixed into a tangible medium of expression.
Trademark covers business names, slogans and other items used to identify it in the marketplace.
However, there is a great deal of overlap between two areas of copyright and trademark, and businesses are known for using both to protect their logos from undesired use.
Copyright is designed to protect against almost all unlicensed copying that is outside of fair use.
Trademark only deals with use of the mark that causes confusion in that company’s marketplace.
In short, trademark is designed not to prevent copying, but confusion in the marketplace, thus severely limiting what uses of the logo can be considered infringing.
We need to delve deeper in the copyright/trademark law to understand the difference.In this article, I will provide you with a complete instruction about the correct use of both copyright and trademark laws.Looking to trademark you logo and brand name? - Use LegalZoom, prices start at $199
First, let’s differentiate these two terms.
1. Copyright vs. Trademark
The only way to achieve protection is through a copyright, trademark or both. And here lies the confusion with logos - many of them actually qualify for both trademark and copyright protection.
What's the difference between copyright and trademark?
In order to have a better understanding of how copyright and trademark work, it’s helpful to know which type of intellectual properties each one protects.
The biggest difference between them is that copyrighting won’t protect your brand’s name and logo from infringement, but a trademark will.
Copyright is made for artistic works protection (i.e. its authorship)
Trademark is made to prevent confusion in the company’s marketplace.
There are different symbols for trademark protection:
™ for the unregistered trademark
℠ for the unregistered service trademark
® for the registered trademark
The process of both copyright and trademark takes time to get final approval, but by starting now you preserve your rights to ownership and thus legal remedy.On the other hand, if you don't have a trademark or copyright you may not be able to sue another party for infringement of your logo.
2. Copyright Protection
Did you know that you already have a copyright in your logo at the moment you draw it?
Did you know that due to The U.S. Copyright Law, every original work of authorship is under protection, automatically.
On it's most basic level, copyright of uniquevisual design is automatic, and originates with the designer.
Any unique logo that I designed for a client will have automatically had copyright assigned to it, and to me.
Read more about copyright basics for graphic designers on AIGA's website.
The copyright law protects "original works of authorship" expressed in a physical form (i.e. books, movies, songs, paintings, photos, choreography, logos etc.)
However, copyright does not protect facts, ideas, systems, or methods of operation, it protects the only the unique way you expressed these things in your work.
In other words, copyright law protects the "expression" of an idea, but copyright does not protect the "idea" itself.
The distinction between the idea and the expression is fundamental in the Copyright law.
As well as for the copyright, you should search the USPTO's database for trademarks, similar to your logo, and evaluate ones you find for possible conflicts.
It will save you both money and efforts you could spend for the whole registration procedure because the USPTO doesn't make any research for similar logos until the very moment you submit the application.
Check the status of your application (normally it takes about 4 months to finish the process, but it may vary).
Set up a “trademark watch” service to protect your rights.
In case of registered trademark, you can protect your brand identity and, what is the most important – prevent usage of your name and design by third parties.
7. Copyright Infringement
When your work is copied, distributed or publicly show without the permission of the copyright owner it’s considered the copyright infringement.
In order to get a compensation, you have to prove that person copied your work.
After you proved that infringement was made, you can sue the infringing side.
In order to avoid copyright infringement treat an artistic logo the same as you would any other photograph or painting and don’t make any use of it that you wouldn’t if it weren’t a logo.
In fact, you are much more likely to have a copyright dispute over a stock photo that you place on your blog than a logo really.
8. Trademark Infringement
When the third party is using your trademark without authorization, which causes confusion about the source of the product it is considered trademark infringement.
In order to claim trademark infringement, you have to prove you own a valid mark and it has a priority to the infringing one, and that infringing side is actually causing confusion in the customers’ minds.
Similarly to copyright infringement, when you prove your brand is actually suffering from trademark infringement, you are able to sue defendant mark.
Did you know that companies, such as Tiffany, have trademarked their core brand colors?
This simply means e.g. that Pandora can't use the turquoise tiffany color.
The law says that your trademark is infringed upon when another company’s brand elements are similar enough to confuse consumers.
Trademark infringement not only make a loss in sells, but also hurts the brand when another one use similar elements but produce inferior quality.
9. Logo Infringement Cases
If you’re still in doubt about registering the copyright and trademark for your brand's logo, these examples will convince you of their importance.
Apple VS Apfelkind
Apfelkind (eng. apple child), a small cafe in Bonn, Germany, suddenly received a logo copyright claim from the Apple.
Due to the Apple, cafe's logo (red apple within child's face) confuses customers and let them think that cafe is connected with tech giant in some way.
As long as the owner of cafe Christin Roma refuses to change her cafe logo, Apple won't give up to sue everybody who dares to use an apple in the logo.
Louis Vuitton VS Louis Vuitton Dak
One of the funniest logo infringement cases was a Louis Vuitton claim against a South Korean fried chicken restaurant – Louis Vuitton Dak.
The restaurant wasn't only using the mirrored logo of the famous brand for their packages, but even stole the name of it.
When restaurant rapidly changed its name to LOUISVOI TONDAK, Lous Vuitton sued the fast-food company for $1,450,000 more for non-compliance.
Your ideas and works are unique only when they belong to you exclusively.
The best way to protect your business is to start with filing you application.
Of course it can take weeks or months to trademark your logo and name, but you're protected from the moment you filed the application!Looking to trademark you logo and brand name?