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Trademark or Copyright – Which Does Your Small Business Need?

by Xavier Morales

When you own a small business, there are countless decisions you need to make. “When do we need a full time HR person?” and  “Should we lease space, or look to purchase?” are some of the common issues I see other small business owners asking themselves. Eventually, you’ll likely find yourself facing another question: “Do we need a trademark or copyright for our products?” Answering this can feel daunting at first, but there are some simple guidelines to keep in mind that will help guide you to an answer.

Defining Trademarks and Copyright.

Before deciding if you need a trademark or copyright, you need to understand the difference between the two. They seem similar, but are actually quite distinct, to the point where they’re handled by two different government agencies.

Trademarks.

The United States Patent and Trademark Office (USPTO) handles trademark and patent registrations, as well as renewals and disputes. According to their website “A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.” Put simply, a trademark is used to protect things like company names, logos, slogans, product names, etc.

Copyright.

Copyrights are much older than trademarks, stretching all the way back to the Copyright Act of 1790. While trademarks are managed by the USPTO, the U.S. Copyright Office manages copyright registration. According to copyright.gov, “Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.” In short, copyrights protect creative works that are authored.

Nailing down your needs.

Now that we’ve laid out the differences between trademarks and copyrights, your business will really dictate which you need. If you’re a dentist or plumber, you’re likely not authoring books or poems. A trademark for your business name and logo should generally be sufficient, and copyrights would not even enter the discussion. On the other hand, if you are a writer or a playwright, the answer is quite different.

Could you need both?

In some cases, you may need both trademarks and copyrights. Let’s say that, for example, you run a small business creating music samples for clients to use as intro/outro, or background music in podcasts and videos. Each piece of music you create would fall under copyright law. Just by recording your music, you have the copyright to the work (as long as it’s original).

However, it is worth noting that unless you officially register the copyright for each piece with the U.S. Copyright Office, you will be unable to file an infringement lawsuit if someone is using your music without permission. (LegalZoom has done a good job of laying this out here.)

While your individual pieces of music are protected by copyright, your business name and logo are not. They would fall under the realm of trademarks. As with copyrights, you do have some level of protection without official registration; this is typically known as a “common law trademark.” The biggest limitation with this “free” trademark is that it generally only applies within your specific geographic area. If your business name is Tom’s Tunes and you’re located in Miami, another Tom’s Tunes can potentially open for business in New York without infringing on your trademark rights. That is, unless you’d already taken the steps to go through official registration with the USPTO.

Making the call.

As we’ve discussed, whether you need to worry about official registration of copyrights or trademarks depends entirely on what line of work you’re in, and what level of protection you’re looking for. If you want the rights to bring a copyright infringement lawsuit against someone using your work, you’ll need an official copyright registration. If you’re OK with someone else having the same business name, as long as they’re not in your town, you can potentially skip the trademark. However, as with all legal matters like this, it’s a good idea to check with an attorney, just to make sure all your bases are covered.

 


Xavier Morales, Esq. is a licensed trademark attorney. In 2010, The Trademark Insider named Mr. Morales the #1 Trademark Attorney in the United States as determined by the number of trademark applications filed in the previous year. Mr. Morales has filed over 5,000 trademark applications with the United States Patent & Trademark Office.

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