Trademark vs Copyright - What IP protection does my business need?

By: Attorney Elena Fewell Howard

Should Alice trademark? Or copyright? Meet Alice. Alice creates novelty potion bottles filled with scrolls inside containing poetry and short stories. There are multiple protections that Alice can seek in order to protect her product. 

Copyright

The poetry contained in the bottle may be protected by filing a copyright. Copyrights protect creative or intellectual works such as a writing or music composition to name a few. The work being copyrighted, in this case the poetry, must be an original work. Successful copyright registry lasts for the lifetime of the creator plus 70 years and extends to performance, display and web postings of the work that was registered. 

Copyright registration gives the creator the exclusive rights to copy the work, distribute work to the public, make derivative works, to perform or display the work publicly, and to sue for infringement. 

In the case of Alice, she can then register her poetry and short stories with the US Copyright register.

Trademark

So why have a trademark? You can register a trademark to, among other things, protect the name of a company, its product names, logos, slogans and even unique packaging. Alice’s company’s name, the product name and any slogan she uses is going to intellectual property that may be able to be trademarked. There are common law trademark protections (marks used in commerce but not federally registered) but they are limited by region which in today’s market may not be enough considering everyone and their mama has a website for their good or service. 

If Alice has not yet sold her product, it would be a good idea to hire an attorney to perform a viability search to determine if someone has already registered the trademark name she wants. A search will help to determine whether the desired name has been registered already or is too close to someone else’s existing trademark. Searching trademark registrations can be time consuming because you have to look for your mark and anything that may be considered “confusingly similar.” 

Additionally, performing a general Google search before seeking a trademark registration of a mark will be another source of information to see if the name is unique. It doesn’t reveal the database searches, but it does typically tell you if someone else is using that name.

It would also be a great idea for Alice to see if the mark she seeks to register has a similar domain name available. E.g. Alice wants to register an LLC as Word Elixir, LLC it would be great for her if www.wordelixir.com was available. If the attorney’s search results seem that it may be a good idea to submit a trademark application for the name, then Alice can begin gathering evidence she is using that name in her business transactions.

The lesson here is that if you find yourself in a situation similar to Alice’s, be sure to speak with a business lawyer in order to determine what sort of intellectual property protection would be wise for you, in addition to seeking out an accountant. At Rational Unicorn, we work with small businesses and proprietors to spot potential issues and propose ways for the business to protect itself presently or down the line. Get in touch to schedule a no-cost service consultation with our Rational Unicorn attorneys today.

Want to read more about trademarks and copyrights? Here’s a link to a blog about the (C) TM and (R) symbols and their meanings.

And like any good lawyer, here’s a disclaimer:

Notice: The person described in this narrative, Alice, is fictitious and is used only to help the author illustrate the difference between copyright and trademark. No identification with actual persons (living or deceased), creative works or products is intended or should be inferred.