Trademark vs copyright: Key differences, costs, and which is better

Trademark vs copyright: Definition and what they protect

Trademark

A trademark protects symbols, phrases, words, designs, or combinations that help people recognize your brand in the market. You can apply for trademark protection for your business name, product name, logo, or slogan, provided they function as unique identifiers of your goods or services, rather than simply describing them.

Moreover, a trademark can also include a service mark if the mark identifies services instead of physical goods. You acquire some of the trademark rights just through use, but it is usually limited to a confined area.

Federal registration of the trademark with the USPTO gives you a legal presumption of ownership and exclusive right to use the mark nationwide for the listed goods or services. Moreover, you can also file a trademark infringement suit in federal court and also record the mark with US Customs for blocking infringing imports at the border.

Copyright

Copyright protects the original work of authorship, the moment you create and fix it in a tangible form. For instance, writings, photos, music, software, websites, videos, and any original expression can get a copyright.

Copyright protects original creative works such as written content, music, software code, and artwork once they are fixed in a tangible form. However, it does not protect facts, ideas, systems, concepts, or methods of operation. Furthermore, it also doesn’t protect individual words, titles, or short phrases. Copyright can only protect specific expressions of an idea, and not the underlying idea itself.

If you’re protecting creative material rather than a brand identifier, copyright registration may be more relevant for you than trademark registration.

Difference between trademark and copyright

Costs involved

Unlike trademarks, which require periodic maintenance filings and renewal for the underlying marks to be protected, copyrights don’t require ongoing renewals to stay enforced under US law. However, there are still a few upfront costs involved in obtaining trademark and copyright protection, which include:

Trademark

For registering a trademark, you must pay application fees, which will vary depending on the category you choose for the mark to be registered. Maintaining a trademark will require renewal fees and, at times, some legal costs for enforcing the rights. The base trademark application filing fee for each international class is USD $350.

For instance, if you have a clothing business that sells dress shirts, T-shirts, and golf shirts, these goods fall under the same international class. Your application filing fee will be USD $350. However, if you also provide custom T-shirt printing services, it will be a second international class, and your filing fee would be USD $700.

You must also know that:

• You can only include one trademark per application, but can list multiple classes, goods or services.
• There may be additional fees if your application doesn’t meet certain filing criteria or requires a detailed review.

Copyright

A copyright is generally less expensive than trademark protection. Under US law, copyrights are automatically enforced once the work is created, and don’t necessarily require registration. However, enforcement is more nuanced. This is because, to file a civil infringement lawsuit for a US work, you need to have formally registered your copyright at the US Copyright Office first.

Moreover, a copyright registration also provides you with some additional legal benefits, such as the ability to claim attorney’s fees and statutory damages in a successful suit. Pursuing copyright registration does involve its own filing and may also involve legal fees. The fee structure is as follows:

• Single application (One claimant, one work, one author): USD $45
• Standard application (For all other online filings): USD $65
• Paper filing (Mailed paper application): USD $125

Duration

Duration of protection varies between copyrights and trademarks. For trademarks, the protection may last indefinitely, but this isn’t automatic. It depends on continued and qualified use of the mark in commerce and compliance with renewal filing and maintenance requirements with USPTO.

In other words, a trademark stays protected only as long as it’s actively being used as intended, and the required filings are addressed within due dates. Trademark protection won’t last indefinitely just because your brand continues to exist.

Copyrights have a limited duration of protection, which extends for the entire lifetime of the author, plus an additional 70 years. After this period, the work then enters the public domain and can be used freely by anyone.

Trademark vs copyright: Legal registration process

Registering a trademark

• Firstly, make a trademark search on the official website of USPTO. Make sure the desired mark is available
• Fill out the form provided with asked details
• Pay the fee and file your trademark application

USPTO examines the application and publishes it for opposition once it meets all legal requirements. If no one contests it, your trademark is officially registered and enforced.

However, registration itself doesn’t mean the USPTO actively enforces your trademark against third parties. It is up to you, as the trademark owner, to monitor for potential infringement and take the necessary enforcement action, such as sending cease-and-desist notices or filing lawsuits, if needed.

Registering a copyright

• Log in or register for the eCO (Electronic Copyright Office) portal
• Complete the application form with all the necessary details
• Pay the registration fee and submit a copy of your work

Once the US Copyright Office processes and approves your application, you will receive a Certificate of Registration. It can provide important litigation benefits if you ever need to file a copyright infringement lawsuit.

Trademark vs copyright: which is best for you?

Copyright vs trademark protection: the decision between them will depend on what you’re willing to safeguard. Both are meant to protect different intellectual property rights and are important in the US for avoiding infringement lawsuits.

Also, having a trademark or copyright of your own doesn’t itself prevent your business from being sued for infringing someone else’s rights. Clearing your own registration is a separate matter from ensuring your name, content, or logo doesn’t infringe on what already exists.

The simple idea is that if you are branding your new business, promoting a service, or launching a new product, you may go with trademark protection. On the other hand, if you’re creating software, a website, code, music, or content, go with copyright protection.

At times, you may need them both. For instance:

• If you are a software company, you need a trademark for branding and copyright for the source code written by your in-house programmers.
• If you are an eCommerce brand, you must rely heavily on trademarks for your products and use copyrights for marketing content.

The right strategy of choosing either trademark, copyright, or both depends on what creates value for your business.