Don’t Get Crushed: Your Guide to the Differences Between Trademarks and Copyrights

As noted in our recent post on the not-so-sweet dispute between the makers of games Candy Crush Saga and CandySwipe, the differences between copyright and trademark are widely misunderstood. Because these differences are super important to your brand’s value, your company’s marketing strategy, and your ability to communicate clearly with your IP lawyer, here are our answers to your crushing questions on the differences between trademarks and copyrights.

1. What are they, anyway?

A trademark (or service mark) is a word, phrase, symbol, or design that identifies and distinguishes the source of the goods or services of one company from those of its competitors. 2014-06-18_TM-and-Copyright-Diff_Kandis

Sweet side note: Business folks tend to get all balled up and confused on the distinction between trademarks and service marks. No need to! The term “trademark” or “mark” is typically used to refer to both trademarks and service marks. The only difference is whether the “mark” is used to identify a good (i.e., a physical product) or a service. The law is the same in every respect.

A copyright protects original works of authorship, including literary, dramatic, choreographic, musical, and artistic (e.g., pictorial, graphic or sculptural) works, motion pictures, sound recordings, and architectural works.

The owner of a copyright generally possesses several “exclusive rights”—the right to reproduce the copyrighted work, distribute copies of it, prepare derivative works based on it, and perform/display the copyrighted work publicly.

2. Why do I need either?

Well, when it comes to trademarks, the consumer needs them more than you. That’s right—while a trademark can be extremely valuable to you, the owner, the ultimate purpose of that mark is to protect consumers and prevent confusion.

Go back to our definition above, and you’ll see that the primary function of a trademark is to inform consumers about the source of the goods or services bearing that mark. This allows the consumer to decide on a purchase based on prior knowledge or the reputation for quality of the goods or services.

For example, a consumer may remember that on her last trip to the drug store, she bought a new brand of toothpaste, and, because it made her teeth bright and shiny, she wants to purchase it again. How can she distinguish the toothpaste she wants from that sea of toothpaste boxes on the shelves? If you are the toothpaste company, you hope she finds your toothpaste because of its distinctive name, logo and packaging design—that’s trademark rights at work! Or, she may decide to purchase a GUCCI bag over another because of the GUCCI brand’s reputation for luxury and high quality, not to mention the message she sends by carrying it.

If you’re an author/creator, or part of your company’s business is to create content, you need copyrights. The purpose of a copyright is to protect you as the creator by giving you the exclusive right to exploit and reap the economic benefit from your creation. The idea is that because you can only protect your work for a limited period of time, both you and society as a whole benefit from the economic incentive to create new works.

3. Do I need to register trademarks and copyrights?

For trademarks, the short answer is no. Trademark rights in the United States are acquired through use, so registration of your trademark with the Patent and Trademark Office is not required for protection. An unregistered mark is protected by so-called “common law” trademark rights, which we’ll get to more in a second. But registration provides certain important benefits, so it’s usually worth at least discussing the registration option.

Sweet side note: What does it mean when you see the symbols ® or ™ after a name or logo, and what is the difference? The ® symbol is reserved for trademarks registered with the Patent and Trademark Office. If your mark is not registered, either because you have not applied yet or your application is still pending, you can’t use ®. Instead, you may use the ™ symbol after your mark, which announces to the world that you claim common law trademark rights in your mark.

Now that we have squared away trademark registration, let’s turn our attention to copyrights. You claim rights to a copyright as soon as you create a work that is “fixed in a tangible form of expression” (i.e., your work can be read or seen). If you give an impromptu speech that has not been written or recorded in any way, that speech is not protected by copyright because it is not “fixed in a tangible copy.”

Like trademarks, you don’t need to register copyrights for protection, but registration provides important benefits. You should also know that you cannot bring a lawsuit to enforce your copyright against a third party without first obtaining a copyright registration from the Copyright Office. This is not a difficult or expensive process, and it can be expedited if necessary for litigation.

Sweet side note: Placing notice of your copyright on your work is no longer required under U.S. copyright law (it was required prior to March 1, 1989), but it is beneficial. Placing the © symbol on copies of your work tells people that the work is protected by copyright, and identifies you as the copyright owner, as well as the year you published the work.
Example: © 2014 Jane Doe

4. Is registration complicated?

For trademarks, yes, registration can be complicated—and it will cost more and take longer than it will for copyright (the process varies widely per mark, but even a non-controversial mark can take approximately 7 months to register). The trademark application process is complex because the Trademark Office conducts a thorough, substantive review of your trademark and its qualifications. True to a trademark’s purpose, the Trademark Office compares your proposed mark against marks already registered to determine if your mark could cause consumer confusion. Even after the Trademark Office approves your trademark, the public has a chance to object and be heard before you actually receive your registration.

Determining when a work is first published can be complicated (and is outside the scope of this post), but copyright registration is not. The application for copyright registration is short and simple, the filing fee is small (under $100 for most filings) and the time it usually takes to obtain registration is relatively short (3 to 5 months if you file online). The Copyright Office will look at your application to make sure it’s properly completed and review a copy of the attached work.

5. How long do trademark and copyright protection last?

Your trademark is protected as long as you continue to use the mark in commerce. This statement is a bit simplistic, since there are certain nuances to this rule, but generally speaking, trademark rights can last forever if you use them right.

Copyright protection does not last forever. This is the quid pro quo of copyright law—you receive a limited period of time to reap the economic benefits from your work in exchange for its eventual move to the public domain, where your work is available to all. The period of copyright protection varies depending on when the work was created and by whom, but the general rule for any work created on or after January 1, 1978, is that the work is protected upon creation and extends through your life plus an additional 70 years after your death. While it’s not forever, it’s still a pretty long time.

6. What’s the deal between Candy Crush Saga and CandySwipe again?

A lot of people criticizing the battle between the Candy Crush Saga and CandySwipe games were confused; many accused the Candy Crush Saga maker of trying to have a “monopoly” on the words “candy” or “saga.” But we now know that the idea of a “monopoly” really doesn’t apply in the context of trademark or copyright.

That leaves us asking, what was the real sweet spot of the lawsuit?

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