Copyright vs. trademark: what’s the difference?

posted on May 1, 2017 |
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There’s no getting around it: when entering the arena of design you’ll need to understand intellectual property law. This is so you can protect your company’s brand identity in an age when images circulate freely around the Internet, as well as understanding what you’re signing at the handover stage of a design project. While this may sound like a tough, even overwhelming responsibility, it becomes much less daunting when you do away with abstractions and legal jargon and just explain the rules in simple terms. Here, we’re going to explore one basic question that tends to cause needless confusion: what’s the difference between copyright and trademark?

Copyright. What is it?

Copyright directly affects everyone involved in the design process, so listen up and listen close.

The answer is staring you in the face: copyright is the right to make copies of some creative work – a drawing, a design, a film, a musical recording, etc. In the United States, the artist automatically possesses sole copyright to her work – until he or she hands over their full intellectual rights to you after finalizing the design contest. Barring a few exceptions (to be discussed below), no one else then has the right to copy it without your permission. The point of this law is to make sure that artists are able to profit from their own work and companies can control their reputations.

Do you have to apply for it?

No. In the U.S. and most other places, the designer automatically possess copyright when they create something. The full intellectual rights will be handed over to you after the contract is signed.

Is it universal?

No. Copyright law varies from country to country. However, most countries’ laws are similar and many of them agree to respect one another’s laws.

What does it apply to?

Copyright applies to material things, not to ideas. If your logo features a dog wearing a top hat, then the copyright applies to the particular arrangement of lines that compose the character, not the “concept” of a dog in a top hat. So another company is free to create their own logo of a dog in a top hat, as long as the lines aren’t the same, or so similar that the logo could be claimed in court to be “derivative” of the original work.

Exceptions to copyright law

The U.S. allows people to use copyrighted work without permission under certain circumstances. This range of exceptions, mostly for discursive or educational purposes, is called “fair use” and includes: commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving, and scholarship.

Copyright infringement

Copyright infringement is an illegal violation of copyright, and you can be punished under the law for this. For example, how artist Jeff Koons was pronounced guilty for making a sculpture deemed “derivative” of another artist’s photograph, while artist Richard Prince used another artist’s photograph even more directly, but was pronounced innocent on the grounds that his work was not derivative but rather “transformative.” (In reality, these are bizarre, borderline cases that make copyright rules seem less straightforward than they really are, so take them with a grain of salt).

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Trademark. What is it?

A trademark is a legal means of controlling your company’s brand marks (words and symbols, like a logo) to make sure that other companies do not use them in a way that would cause confusion in the marketplace or otherwise diminish your brand’s power to call your particular goods or services to mind. In short, it is a way of protecting the distinctiveness of your brand.

Here are the main facts you need to know about trademark:

Do you have to apply for it?

Technically, yes. Once your trademark is approved, you get to use the registered trademark symbol: ®. However, the United States gives businesses the benefit of pursuing trademark protection from the start, even if they have not officially registered yet. Any business can add the pending trademark symbol, ™, to their brand mark to signal that they intend to register a trademark eventually.

Is it universal?

No. Businesses must apply for trademark registration in every country where they wish to operate. Laws vary from country to country and some countries do not respect trademark at all. However, in general most countries have similar rules and will respect foreign businesses’ trademarks, even if the company has not officially registered in that country yet.

What qualifies a brand mark for trademark protection?

In order to get trademark protection, a brand must possess sufficient “distinctive character.” In other words, the government can only protect your special rights to a proprietary mark or name if that mark or name was unique to begin with.

U.S courts have actually outlined a spectrum of “distinctiveness” to guide trademark-granting decisions. Here it is, from most distinctive (and thus most likely to attain trademark status) to least distinctive:

fanciful marks:
totally made up words or signs, like Kodak, that thus have no existing associations
arbitrary marks:
words or signs that are familiar but have nothing to do with the business context, like Apple computers
suggestive marks:
words or signs that have obvious connections to the business or industry, but are not merely descriptive and require imagination, like Blu-ray
descriptive marks:
words or signs that simply describe the product, like a brand of potato chips called “Salty.” Such a brand would almost certainly not qualify for trademark protection.

Trademark infringement

Trademark infringement is a violation of a brand’s trademark rights and is punishable under the law. The U.S government recognizes two types of trademark infringement: confusability and dilution.

Confusability determines trademark infringement in cases where the trademarked word or logo is not especially famous. The logic is simple: if another company starts using a name or design that is so similar to the trademarked one that an average consumer could become confused about which brand refers to which company, then trademark has been violated. Obviously, two brands are more likely to be confused if they are in the same industry and/or regional market, and this is taken into consideration in trademark lawsuits.

If a brand is already very famous, like Coca-cola, then people are not likely to easily confuse it with a knock-off brand calling itself “Koka-kola” or something along those lines. However, famous brands do worry about another kind of infringement called “dilution”: this is when another party starts using someone else’s trademarked name to refer to something unrelated – like “Koka-kola breakfast cereal.” Associating this name with breakfast cereal could threaten to “dilute” the strong association in people’s minds between “Coca-Cola” and soda, so this would be considered trademark infringement.

The most well-known trademark infringement cases, then, naturally have to do with dilution.

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Now that you understand everything there is to know about copyrights and trademarks, we encourage you to think about your project so you’re totally familiar with the terms when you agree to a design project of any kind.- Ralph D.

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