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What Is the Difference Between Trademarks and Copyrights?

Fri Oct 29th, 2021 by  Trademarks

Trademarks and copyrights are two major forms of intellectual property. Sometimes known as “soft IP” to distinguish them from the “hard IP” of patents, trademarks and copyrights are easily confused, as they both protect intangible assets. Trademarks protect brand names, logos, slogans, and other aspects that represent a business in the marketplace. Copyrights protect creative works, such as books, movies, and paintings. An Alabama trademark lawyer explains in more detail. 

Trademarks: Brand Names, Logos, Slogans, etc. 

As mentioned above, trademarks protect any aspect of a brand that identifies the source of the goods and distinguishes them from others in the marketplace. Common forms of trademarks include brand names, logos, slogans, jingles, insignias, and words and phrases. Less common forms of trademarks, known as “non-traditional trademarks” include colors, smells, sounds, and product design and packaging. 

The two key questions when it comes to deciding whether a brand element constitutes a trademark are whether(1) it is in use in commerce and (2) whether it is distinctive. The use in commerce requirement is fairly straightforward — the mark must actually be in use in connection with the holder’s products or services (or the holder must affirm that he or she intends to use the mark at a future date). The distinctiveness requirement is trickier. There are four levels of trademark distinctiveness: 

  • Fanciful/arbitrary: A fanciful mark is a made-up word (e.g., Exxon), while an arbitrary mark is a well-known word that uses a different meaning (e.g., Apple)
  • Suggestive: A word that is suggestive of the product, but does not name it explicitly (e.g., Jaguar)
  • Descriptive: Merely describes the product (e.g., American Airlines)
  • Generic: Common terms used to describe broad categories of products (e.g., Shoes)

Fanciful, arbitrary, and suggestive marks generally qualify for trademark registration on their own merit, while suggestive marks require evidence of “secondary meaning” to be registrable. Generic marks do not function as trademarks and, therefore, cannot be registered. 

A trademark remains in force for as long as it is actively being used in commerce. 

Copyrights: Creative Works

Copyrights protect creative works. This is an extraordinarily broad category that includes books, movies, musical recordings, scripts, visual artworks, architectural works, and more. The three key requirements for copyright protection are that the work is (1) original, (2) a work of authorship, and (3) fixed in a tangible medium. Originality means that the work contains at least a spark of creativity (e.g., arranging words in a dictionary in alphabetical order would not count). A work of authorship is any work described above (and more). “Fixed in a tangible medium” means that the work must be permanent or stable enough to be perceived, reproduced, or communicated (such as literary works written on paper, sound recorded in MP3s, video recorded on film, etc.). 

The term of a copyright depends upon whether the work is published or unpublished and what year it was originally published. For works published after 2002, a copyright remains in force for the life of the author plus 70 years. 

Contact an Alabama Trademark Lawyer for More Information 

For more information about trademarks, copyrights, or any other form of intellectual property protection, please contact an Alabama trademark lawyer at Adams IP by calling 251-289-9787 or by using our online contact form.