In this copyrights & trademarks 101 post, we’ll cover some of the basics, with a heavier focus on trademarks because they are often a little trickier to navigate when it comes to infringement.
Copyright: Original Work
Copyright refers to the legal right granted to the creator of an original work, like a book, music score, movie, painting or software. A copyright gives the creator exclusive control over the use and distribution of that work. There are a few terms associated with copyrights:
- Original Work: An original work is a creation resulting from significant creative or intellectual effort that possesses a minimal amount of creativity, irrespective of its artistic merit.
- Authorship: The author or creator of a copyrighted work is the individual or entity responsible for its creation.
- Exclusive Rights: Copyright provides exclusive rights to the copyright holder, including the right to reproduce, distribute, display, perform, and create derivative works based on the original work.
- Duration: In most countries, copyright protection lasts for the author’s lifetime plus a certain number of years after their death. The duration can vary depending on the type of work and jurisdiction.
Trademarks: Brands, Logos, Marks
Alternatively, a trademark protects any recognizable sign, design, symbol, phrase or logo that identifies and distinguishes the source of goods or services of one party from those of another. The most common terms associated with trademarks are:
- Brand Name: A brand name is a distinctive name, word or phrase used to identify a product, service or company. It can be protected as a trademark.
- Trademark Infringement: Trademark infringement occurs when a party uses a mark that is identical or confusingly similar to an existing registered trademark, potentially causing confusion among consumers.
- Goods and Services Classes: Trademarks are registered within specific classes that categorize the types of goods or services associated with the mark. This classification system ensures that trademarks within the same class do not conflict with one another.
- Duration: Trademark protection can last indefinitely as long as the mark is used in commerce and the necessary renewal filings are made.
State vs. Federal Trademark Protections
Many people don’t realize that there are state and federal levels of trademark protections, and that the level of protection is vastly different. Federal trademarks provide protection across the entire United States and offer stronger legal rights and remedies compared to state-level registrations, including the ability to bring infringement actions into a federal court, including the Supreme Court.
Federal trademarks are governed and granted by the U.S. Patent and Trademark Office, with a registration process that involves a more rigorous examination and review of the trademark application to ensure compliance with federal trademark laws.
Alternatively, state-level trademark protections only extend to the specific state of registration, and thus to that state’s jurisdiction. So, if you register your trademark in Colorado but find that someone in Florida is using your same logo, brand name or mark, you don’t have much recourse. State-level legal protections are typically less robust, meaning a registrant’s rights are simply not as broad as the federal protection. Each state maintains its own trademark database, where you can search and register trademarks.
Common Law Trademarks
A so-called “common law” mark is the simplest iteration of trademark protection, and occurs when a logo or mark becomes commonly associated with a product or brand, even if that mark has not been formally registered.
However, enforcing a common law trademark is much harder to do, though it can be done. For example, if a federally registered trademark infringes on an already established common law trademark with a proven first-use date, the common law mark may have rights within the local geographic area that surpass the federally registered mark.
Common law marks can protect you from infringement in your locality, as long as you can prove that your mark is locally recognized. But it won’t protect you from infringement in another state. The larger impact here is in social media presence, which knows no geographical boundaries.
Bottom Line: Federal Trademarks Provide the Strongest Protections
Though common law trademarks are by far the easiest level of protection to obtain, the strongest option is a federally registered trademark. You get the broadest expanse of legal rights and the toughest level protection to help you recover damages. Think about it as a business decision that not only defends your hard work in creating a unique identity, but also increases your business’s credibility.
Why You Need an Intellectual Property Lawyer.
Intellectual property matters can be tricky and complex to navigate. Failing to protect your intellectual property adequately can be the difference between business success and significant debt. If you have concerns about IP, it’s best to speak with a lawyer with specific experience in that area of law.
If you are involved in an intellectual property dispute—or would like to protect your intellectual property—get legal help from an experienced IP attorney. To get started, call our Denver law firm at 303-534-4317 or send us a message.
