Copyrights protect all original pieces of work, such as music or literature, while a trademark is a word, phrase, symbol or design that indicates the source of goods and distinguishes them from others. Creators automatically are the owners of copyrights to the work they create. On the other hand, trademarks are granted by regulatory bodies (such as the USPTO) in response to formal applications.
Usage and Examples
Copyrights are associated with all creative works and restrict who can reproduce or distribute (whether free or not) a creative work. Literature, music, art, movies and TV programs, software, designs and pictures are all protected by copyrights. As soon as something is created, the creator owns copyrights to it (unless the creators have agreed in a contract to transfer these rights to another entity). Even if the work is not published anywhere, it is protected by copyright law.
Trademarks are words, names or symbols that indicate the source or producer of goods. For example, the Nike brand name and the swoosh logo are trademarks of Nike. They indicate that the products are authentic Nike products and other vendors cannot use a confusingly similar mark. However, trademarks do not prevent others from making the same goods or selling them under a different mark.
Another example is Life is Good T-shirts. The company owns the trademark "Life is Good" for clothing and accessories. So no other company can sell clothing and accessories with the name "Life is Good" or confusingly similar names like "Life Good". However, it may be possible for a different company to obtain the same trademark for a different set of products e.g. Life is Good laptops.
Certain designs or captions on T-shirts may be protected by copyright laws. The Life is Good trademark does not prevent other companies from selling T-shirts under their own brand name. But copyright laws may prevent other companies from duplicating Life is Good's original creative designs.
Registering a Trademark
Copyright is an automatic right, which means that creators do not need to apply for it. If you wish to use another’s copyrighted material, you can work with the copyright-holders and obtain a license from them.
Information for registering a trademark is available on the US Patent and Trademark Office website. An application may be filed online using the Trademark Electronic Application System. Filing fees vary, but a basic online application costs $270.
You can search for trademarks in the USPTO database to see whether they have been claimed.
There are some restrictions on what words or phrases can be trademarks. For example, bread manufacturers cannot trademark "Bread".
With copyrights, a notable exception is facts. Facts are not copyrightable. Even if the author spends a lot of time and effort compiling facts, they can be copied and reproduced by others. However, the presentation and arrangement of these facts is copyrightable. For example, product specifications are facts and therefore do not copyright protection. However, the way in which these specifications are presented is covered by copyrights.
Creative works enjoy copyright protection automatically but only for a certain period of time. This duration varies by country. In the U.S., since the Copyright Term Extension Act of 1998, copyright lasts for the life of the author plus 70 years, and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. Critics have alleged that companies like Disney influence Congress via lobbyists to keep their cash cows (such as Mickey Mouse) under copyright protection by extending the life span of copyrights, which is not in the best interests of society.
Trademarks remain valid as long as they are in use. There is no requirement for them to expire after a certain period of time.
Both copyrights and trademarks can be licensed. Copyright licenses allow the licensee to distribute the work. It may or may not be for profit. There are several types of copyright licenses, each with their own conditions and restrictions on what the licensee is allowed to do. For example, the Creative Commons Attribution license allows the licensee to freely distribute the work but requires them to attribute the work to the author.
Trademarks can also be licensed. For example, the owner of the trademark may partner with a company in a new geography and license the other company to use its brand but only in that specific geographic region. The franchising model also includes licensing the trademark. For example, a McDonald's franchisee can legally use the McDonald's trademark even though it is owned by the corporation.
Violations and Infringement
It is illegal to violate both copyright and trademark laws. Copyright laws are violated when, for example, a book or a movie is illegally downloaded or if pirated software is used. It may also be violated in cases of plagiarism.
When a person or organization distributes a copyrighted work without authorization, this is called infringement. There are some exceptions, including fair use, where the extent to which the copyrighted work is used is not substantial enough to appropriate the “heart” of the original work, and does not eat into the potential market for the original work.
Violation of trademark laws usually occurs when counterfeit goods are sold. These goods use a reputed brand name such as Calvin Klein or Levi's to mislead consumers about their origin and supplier. Companies spend billions of dollars in marketing to build a brand for their trademarks. It is illegal for counterfeiters to profit from it.