What is a Trademark? A trademark includes any word, name, symbol, or device used in commerce to identify the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark
is a brand name such as Coca-Cola® for beverages, the Nike swoosh for shoes, and FedEx® for package delivery services. To learn more click here.
What is a copyright? A Copyright is a form of protection for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works. In short, copyrights protect original works of artistic expression such as movies, books, songs, lyrics, photographs, graphic designs and other similar works. To learn more click here.
An actual trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name used in connection with goods (e.g., Nike for shoes, Ford for automobiles, Microsoft for software).
Although generally used to refer to all four classes of marks, the true nature of the trademark is as a brand identifier for actual goods alone.
A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.
So trademarks are for goods. Service marks are for services. In reality, some of the most famous "trademarks" are actually service marks. Marks such as McDonalds for restaurant services, American for airline services, and Google for search engine services are all service marks, not trademarks.
A certification mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce with the owner's permission by someone other than its owner, to certify regional or other geographic origin, material, mode of manufacture, quality, accuracy, or other characteristics of someone's goods or services, or that the work or labor on the goods or services was performed by members of a union or other organization.
Some example of certification marks would be the Energy Star logo for energy efficient items, the Organic mark certifying certain foods to be organically grown, and the certified NSF designation.
Collective Membership Marks
A collective mark is a trademark or service mark used, or intended to be used, in commerce, by the members of a cooperative, an association, or other collective group or organization, including a mark which indicates membership in a union, an association, or other organization.
What Constitutes Use?
For goods, use occurs when goods with the mark displayed on the goods or the packaging for the goods are sent across state lines. With services, use occurs when offering services to those in more than one state or rendering a service, which affects interstate commerce (e.g. restaurants, gas stations, hotels, etc.).
Can I Reserve a Trademark Before I Use It?
Yes. A trademark can be "reserved" with the U.S. Patent and Trademark Office by filing an Intent-to-Use Application for the trademark. Although an Intent-to-Use Application requires additional paperwork to be filed during the Registration Process, it permits persons to reserve a trademark for future use while their business, brand, or product line is developed.
Should a Trademark Search Be Performed to Make Sure my Trademark is Available Before I File an Application to Register the Trademark or Begin Use Thereof?
Yes, although a search is not required. Trademark Research allows you to verify that your proposed mark is not in use by another and is available for you to use.
Do I Have To Register a Trademark to Use a Trademark?
No. However, federal registration has several key advantages which make it important to obtain a registration especially to Enforce a Trademark and preclude others from using your mark or similar marks thereto. A federal trademark registration provides:
Constructive notice nationwide of your claim of ownership of a trademark;
Registration can be used as a basis for obtaining Registration in Foreign Countries;
Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign goods.
Is a U.S. Federal Registration Valid Outside the U.S.?
A U.S. Federal Registration only protects your mark here in the U.S. However, any trademark owner with an application filed in or a registration issued by the U.S. Patent and Trademark Office can extend protection of that trademark into over 71 other countries through a treaty known as The Madrid Protocol.
What do copyrights protect?
Copyrights protect original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyrights do not protect facts, ideas, systems, or methods of operation.
How is a copyright different from a patent or a trademark?
A Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.
Can I copyright my website?
Yes. The original authorship appearing on a website may be protected by copyright. This includes writings, artwork, photographs, and other forms of authorship protected by copyright.
Can I protect a recipe?
Yes and No. A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. Note that if you have secret ingredients to a recipe that you do not wish to be revealed, you should not submit your recipe for registration, because applications and deposit copies are public records.
Does copyright protect architecture?
Yes. Architectural works became subject to copyright protection on December 1, 1990. The copyright law defines architectural work as the design of a building embodied in any tangible medium of expression, including a building, architectural plans, or drawings. Copyright protection extends to any architectural work created on or after December 1, 1990. Also, any architectural works that were unconstructed and embodied in unpublished plans or drawings on that date and were constructed by December 31, 2002, are eligible for protection. Architectural designs embodied in buildings constructed prior to December 1, 1990, are not eligible for copyright protection.
Can I copyright the name of my band?
No. Names are not protected by copyright law. They are, however, able to be registered as Trademarks. If you would like to register your band's name as a Trademark visit our Register a Trademark section. Of note, copyrights can protect recordings of songs and music by a band as well as music and written lyrics.
How do I copyright a name, title, slogan or logo?
Copyright does not protect names, titles, slogans, or short phrases. They are, however, able to be registered as Trademarks. If you would like to register a name, title, slogan, or logo as a Trademark visit our Register a Trademark section.
Can non-U.S. Citizens register their works in the United States?
Any work that is protected by U.S. copyright law can be registered. This includes many works of foreign origin. All works that are unpublished, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country with which the United States has a copyright treaty or that are created by a citizen or domiciliary of a country with which the United States has a copyright treaty are also protected and may therefore be registered with the U.S. Copyright Office.
Can a minor claim a copyright?
Yes. Minors may claim rights in a copyright, and the Copyright Office issues registrations to minors, but state laws may regulate the business dealings involving copyrights owned by minors.
How long does a copyright last?
The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors.
Do I have to renew my copyright?
No. Works created on or after January 1, 1978, are not subject to renewal registration. As for works published or registered prior to January 1, 1978, renewal registration is optional after 28 years but does provide certain legal advantages.