This post is a simplified, high-level introduction to some aspects of trademark and copyright protection. Intellectual property is complex and IP law varies between jurisdictions. To obtain more comprehensive information or for advice applicable to your specific circumstances, we strongly recommend that you contact a lawyer or other relevant legal professional in your jurisdiction.
In the US and Canada, trademark and copyright are two very popular and common legal terms—you’ve likely seen the symbols ™, ®, or © affixed to various brand names, logos, or titles.
Both trademark ( ™and ®) and copyright (©) offer some degree of long-term protection for your creation, barring others from unauthorized use of your intellectual property (IP). But trademark and copyright serve distinct purposes.
Although both offer protection of intellectual property, what they protect and how makes them very different legal tools. This guide shares the differences between trademark versus copyright and when to use either type of protection.
What is a trademark?
A trademark is a legally recognized symbol, word, design, shape, phrase, or combination of these elements that distinguishes a company’s products or services from competitors. This protection helps prevent consumer confusion and unauthorized use by similar businesses. For example, if you trademark the name of your bookstore, another bookstore cannot use that phrase. But a restaurant or software company might be able to use it.
Here’s a real world example: The three-stripe logo is one of Adidas’s most recognizable trademarks. When luxury fashion company Thom Browne launched sportswear featuring a four-stripe logo, Adidas sued Thom Browne for trademark infringement.
In January 2023, a jury found that there was no trademark violation since customers were unlikely to confuse Thom Browne’s high-end fashion products with Adidas’s sportswear products.
In many jurisdictions, trademarks can also protect colors, holograms, moving images, modes of packaging, sounds, scents, and textures.
™ vs ®
™ and ® are both trademark symbols. Businesses can use ™ for common law trademarks (unregistered trademarks that a business establishes simply by using it in commerce) and state-registered trademarks. The ™ offers limited protection, such as only for your geographic location. The ® symbol signifies that a business registered a trademark with the federal government, granting the brand nationwide rights.
Skin care brand Then I Met You uses both ™ and ® on its product packaging. The brand registered the company name but not all of its products. The container for its Rosé Resurfacing Facial Mask, which is not federally registered, features a ™ next to the product’s name and an ® next to the brand’s name.
What is copyright?
Copyright law serves to protect the intellectual property of creative works, such as literary works, visual art, or music. This could include logos, which you can also trademark. The copyright owner of a given creative work has exclusive rights to display, distribute, reproduce, or perform the work—and may be entitled to compensation when others borrow from or reproduce aspects of the work.
You don’t need to file an application to be a copyright owner, though registering does afford more protection. Once you create a work and fix it (capture it in a somewhat permanent medium), you are a copyright owner. Businesses can also own copyrights for their creative work. Many businesses, such as shoe brand Kindred Label, use the copyright symbol on the footer of their website.
Trademark vs. copyright
| Trademark | Copyright | |
| What’s protected? | Signs such as names, logos, and slogans to distinguish goods and services from competitors. | Literature, music, artwork, illustrations, videos, software, audio recordings, blog articles, and more. |
| Requirements for protections | Must be distinct and used in commerce. | Must be original work on a tangible medium (e.g., an original video posted on YouTube). |
| Associated rights | Prevents others from using the trademark in a way that could confuse customers. | Control how your copyrighted work is used, with exclusive rights to reproduce, distribute, or display the original work. |
Although trademark and copyright law share some features because they both sit in the general realm of intellectual property protection, some major differences set them apart:
Protectable elements
A trademark can protect signs such as words, logos, design elements, and even certain phrases or slogans that might define your business’s brand. Copyright protects expressive creations you or your business may produce. These can include (but are not limited to) writing, artwork, photographs, software code, sound recordings, or video content.
Requirements
A trademark must be distinctive and not confused with other terms in the same context, and a copyright applies to created works that are fixed. In the United States, neither trademark nor copyright protection requires a formal registration, but any attempts at enforcement of either may be hampered without one.
Terms of protection
You need to renew trademark protection every 10 years. In the United States, copyright protection automatically applies and generally lasts for the lifetime of the author plus 70 years.
Rights granted
Trademark protection prevents anyone else from using your trademark in a way that might confuse customers. Copyright gives you the sole right to reproduce your work. Someone couldn’t republish a copyrighted blog post on their own website without permission, for example.
When do you need a trademark vs. copyright?
Businesses often use trademarks to protect brand identity. This includes assets associated with logos, certain unique design elements to that logo, and even some distinct marketing or branding language such as identifying slogans.
If your business uses certain stylistic branding elements to distinguish your goods or services in the marketplace, you may want to pursue trademark protection for them. A registered trademark gives you pathways to legal remedies if a competitor copies some or all of your branding to lure away your customers.
Yet it works both ways: If a close competitor already has adopted a similar trademark, obtaining a registration may not be possible because the competitor may be able to oppose the application.
Copyright protects creative works your business has produced, such as business literature, video content, or an artistic work of some kind. Similar to trademark protections, copyright provides legal recourse if someone misappropriates your work.
What are the benefits of IP protection?
While you don’t need to register a trademark or copyright to prove ownership, doing so can be beneficial:
Nationwide recognition
Both registered trademarks and copyrights protect your assets—nobody else can use them without your permission. These restrictions apply nationwide, and in the case of copyright, in other countries as well. In the case of trademarks, you may choose to pursue registration in more than one country. For example, you might want to seek registration in each of the jurisdictions where you do business.
Legal presumption of ownership
Registering a trademark means that you can be assumed as the legal owner of your business. This means that if someone initiates a legal dispute over the trademark, you are recognized as the legal owner, making it easier to enforce rights against those who infringe.
Another benefit of federal trademark registration in the US is that the trademark is protected nationwide. There are, in some countries, including the US, rights that can be acquired in a mark through use without registration; however, those rights are limited to the geographic area where the mark was used.
Legal remedies
In the United States, you can sue for both copyright and trademark infringement through a federal court. The Lanham Act protects trademarks, whereas the Copyright Act of 1976 governs copyright-related legal issues.
With a registered trademark or copyright, you can seek either of the following in the case of infringement:
- Injunctive relief, which stops the infringer from continuing to use your protected work.
- Monetary damages, such as for revenue you’ve lost because another retailer used your brand name or slogan to pry customers away from your business.
Even if you don’t have a formal registration approved, “common law” rights mean you could still take legal action against infringement. But the scope of your protection could be reduced.
Deterrent against infringement
Registering a trademark or copyright strengthens your brand identity, allowing your business to build trust and loyalty while safeguarding your intellectual property in the marketplace. Bad actors may be less likely to infringe on your protection if they know you can sue them for unauthorized use.
Common misconceptions about trademarks and copyrights
- Trademarks and copyrights are the same
- Copyright protects ideas, not just expressions
- Trademarks last forever without renewal
- You need to register a trademark to have legal rights
- Copyright needs to be registered
- Trademarks only protect logos
The following statements are all common misconceptions. Here’s why they’re false and what’s actually true about trademark and copyright laws:
Trademarks and copyrights are the same
Trademarks and copyrights are not the same; they have multiple differences. For example, the types of protectable content are different under trademark versus copyright law. Trademarks primarily protect symbols, words, or phrases, whereas copyright also protects a wider variety of creative works, such as sound recordings, books, or artwork in many mediums.
Copyright protects ideas, not just expressions
Copyright laws don’t allow you to protect an idea, but you can protect the way that idea is expressed. For example, you aren’t able to protect the concept explained in your book or article, but you can copyright the way you expressed it.
Trademarks last forever without renewal
Trademarks are not held indefinitely. A common law trademark theoretically lasts for as long as the holder uses it in ordinary commerce, but simply using the trademark is not sufficient to demonstrate continuous, ordinary use.
In the US, a trademark holder must file a Section 8 declaration every 10 years from the date of registration, demonstrating that the trademark remains in use, if they want to continue to benefit from full protections. A renewal fee must also be paid. Failing to do either will result in the trademark being deemed “dead,” which means another party can potentially adopt and register it. Renewal of trademarks is also required in most other countries, including Canada.
You need to register a trademark to have legal rights
Maximum trademark protection applies when your trademark is formally registered. However, common law rights mean you could still have some legal protection if somebody uses a slogan, name, or image that you’re using to identify or distinguish your brand.
Common law rights also tend to be limited to the geographic area where a mark is used. If you’re using a slogan to sell to customers in New York, for example, you might not have any legal protection against another business adopting the same slogan to reach customers in Los Angeles—even though you may have built common law rights to use the mark in New York.
It’s also harder to prove ownership for trademarks that aren’t formally registered. That’s another reason legal registration with the United States Patent and Trademark Office is the best way to deter others from using your trademark.
Copyright needs to be registered
You are not required to register a copyright for your creative works. Copyright laws automatically protect any original work you’ve produced, such as a video, illustration, or audio recording. Eligible work must be in a tangible form (e.g., text published on your website) and completely original.
That said, you don’t have maximum legal protection unless the copyright is formally registered. In the United States, your copyrighted work must be registered with the US Copyright Office before formally suing an infringer. Obtaining a registration can take many months, so you may not want to wait to encounter an infringer before you seek copyright registration.
Trademarks only protect logos
Trademarks can protect any symbol, word, or phrase that protects your business’ intellectual property—trademark law is not limited to logos. McDonald’s, for example, trademarks phrases like “McDelivery,” “McNugget,” and “Egg McMuffin” to prevent other fast food chains from using the same names for their products.
Trademarks can also cover scents, sounds, and colors—like the lion roar at the start of any MGM movie or UPS’s signature Pullman Brown color.
Trademark vs. copyright FAQ
Do you copyright or trademark a saying?
As a business, you can trademark phrases or slogans that you plan to use to distinguish your products in the marketplace. You cannot copyright things like names, titles, or short phrases.
Is a slogan proper subject matter for a copyright or for a trademark?
Slogans tend to be trademarked instead of copyrighted to prevent competitors from using them to confuse consumers. You have the right to take legal action against anyone using your registered trademark.
Do I trademark or copyright a logo?
For a broader scope of protection, it’s wise to consider trademarking your logo. For example, trademarking your logo prevents others in your field from adopting similar marks that may cause confusion in the marketplace between your brand and competitors.
How long does a trademark last?
Common law trademarks persist for as long as the trademark holder continues to use the mark, name, design element, or slogan, and continues to maintain their registration for it. If a mark falls out of use, it may be designated as “dead,” and become available for federal trademark registration process by another party. Registered trademarks must be renewed every 10 years.
Is it better to have a copyright or trademark?
Neither a copyright or trademark is better than the other. Copyrights and trademarks protect different types of intellectual property. Therefore, the best option for you depends on what kind of work you are trying to protect.
Do I copyright or trademark my name?
A trademark can protect your company name, as well as any logos, design elements, or marketing phrases unique to your brand. You cannot copyright a business name because copyright protections don’t extend to titles, slogans, short phrases, or logos.
What cannot be copyrighted?
You cannot copyright ideas, methods, systems, names, titles, short phrases, typefaces and fonts, blank forms, and familiar symbols or designs like an ampersand, houndstooth, or a yin yang.
