What’s the difference between a copyright and a trademark? Although both protect intellectual property, the basis of each type of protection is different.
A copyright is designed to protect the author or creator of a work. A “work” could be a book, a painting, a sound recording, or a brochure – almost any original work of authorship that’s been fixed in a tangible medium of expression. If I’ve written a book called “The Lifecycle of a Grub,” for example, copyright laws grant me the exclusive right to reproduce my book, prepare derivatives, distribute copies, and to display or perform readings from my book publicly. I can choose to grant some or all of these rights to others via a license, or I can choose to deny them. We give authors these exclusive rights to encourage creativity and originality.
A trademark, on the other hand, is designed to protect consumers. At the root of nearly all trademark infringement cases lies an analysis of the likelihood of consumer confusion. A trademark – which could be a logo, brand name, or even a color – acts as a source-identifier, distinguishing Starbucks coffee from Caribou or Coca-Cola from Pepsi. If I paid $11 to buy a package branded just like my all-time favorite Charmin Ultra Soft toilet paper, and opened it to discover a product that feels like recycled sandpaper, I’d not only be confused, I’d be upset.
When you’re trying to decide what type of intellectual property protection you might need, ask whether you’re concerned about the author’s creative expression itself, or are you concerned about the public’s ability to identify you as the source of a product or service? It’s not foolproof, but it’s a helpful starting point.
* Please don’t misconstrue this as specific legal advice. If you need help with your own unique situation, you may contact myself or another licensed attorney.
