In the realm of intellectual property, copyright and trademark laws play critical roles in protecting creative works and brand identities. Despite their common goal of safeguarding intellectual property, they serve different purposes, cover different types of assets, and have distinct legal frameworks. Let’s delve into their definitions, the meanings of their respective symbols, the registration processes, durations of protection, and what constitutes infringement.
Definitions and Symbols
- Copyright ©: This law protects original works of authorship, such as literary, musical, and artistic works. When you see the copyright symbol (©), it indicates that the creator owns the exclusive rights to use and distribute the work.
- Phonorecord Copyright ℗: A phonorecord copyright refers to the legal protection granted to the material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed. Phonorecords encompass various physical formats such as vinyl records, cassette tapes, compact discs, and even digital files stored on a computer or other physical storage devices. When a digital music file is fixed in a material object for a period of more than transitory duration, such as a hard drive, it is considered a phonorecord. Capitol Records, LLC v. ReDigi Inc., 910 F.3d 649.
- Trademark ™ / ®: Trademark law, on the other hand, protects brand identifiers, such as names, logos, and slogans. The ™ symbol denotes an unregistered trademark, while the ® symbol is used for trademarks that have been officially registered with the United States Patent and Trademark Office (USPTO).
Length of Protection
Copyright: The duration of copyright protection varies depending on when the work was created and published. Generally, it lasts for the life of the author plus 70 years. In the case of joint works, copyright endures for the life of the last surviving author plus 70 years. For works made for hire or anonymous works, it typically lasts 95 years from publication or 120 years from creation, whichever is shorter. 17 USCS § 302.
Trademark: Trademarks can potentially last indefinitely, provided they are continuously used in commerce to reflect the ongoing commercial value of the mark and timely renewals are filed. Initially, trademark registration is valid for ten years, with the possibility of renewal every ten years thereafter.15 USCS § 1058.
Furthermore, a trademark registration may become incontestable if the mark has been in continuous use for five years after the initial registration, there is no pending challenge to the validity of the mark, and the registrant files an affidavit affirming that the mark is still in use. Wilhelm Pudenz v. Littlefuse, Inc., 177 F.3d 1204. This incontestability provides the registrant with a stronger presumption of the mark’s validity and exclusive rights to use it in commerce Wal-Mart Stores v. Samara Bros., 529 U.S. 205, Dewberry Eng’rs Inc. v. Dewberry Grp., Inc., 77 F.4th 265.
Registration Process
Both copyright and trademark laws do not require registration for protection, but registration provides certain incentives.
Copyright: Copyright protection is automatic once the work is fixed in a tangible form, but registering with the U.S. Copyright Office provides additional benefits, such as the ability to sue for statutory damages and attorney’s fees in infringement cases. Registration is a prerequisite for bringing an infringement action. The registration process involves submitting a completed application form, a copy of the work, and a filing fee.
Trademark: Trademark registration is not automatic. It requires a formal application process through the USPTO, including a thorough search to ensure the mark is not already in use, submission of a detailed application, and payment of the applicable fees. The USPTO examines the application, and if approved, the trademark is published for opposition before being officially registered.
Infringement
Copyright Infringement: This occurs when someone uses copyrighted work without the permission of the copyright holder. It can include reproducing, distributing, performing, or displaying the work without authorization.
Trademark Infringement: Trademark infringement happens when a mark is used in a way that is likely to cause confusion, deception, or mistake about the source of the goods or services. This can dilute the distinctiveness of the trademark or tarnish its reputation.
Both copyright and trademark infringement are strict liability offenses, meaning that the plaintiff does not need to prove the defendant’s knowledge or intent to prove infringement occurred. Arista Records LLC v. Myxer Inc., 2011 U.S. Dist. LEXIS 109668.
Conclusion
Understanding the differences between copyright and trademark law is crucial for protecting intellectual property. While copyright focuses on the protection of creative works, trademark law safeguards brand identity. Both have unique symbols, registration processes, and lengths of protection, and infringement of either can have serious legal consequences. By knowing these differences, creators and businesses can better navigate the legal landscape and secure their intellectual property rights effectively.
Are you in need of assistance with the registration of your copyright or trademark? Schedule a free ten-minute consultation today to speak with our expert copyright and trademark attorney!