Copyright vs. Trademark: What's the Difference? - NerdWallet (2023)

Is your business also a brand? Do you create original materials and assets for your business? If so, it's likely you've considered how to protect your intellectual property—and therefore, you might be wondering about the difference between copyright versus a trademark.

Ultimately, intellectual property and brand identity can be just as important as revenue when it comes to your business. As an example, you might wonder what happens if someone starts selling a product using your company name and logo as an endorsement without your permission–how will this affect your business?

Luckily, with copyrights and trademarks, you can protect your business and file suit against those who use your brand and intellectual property without permission. In this guide, we'll explain the difference between copyrights and trademarks so that you understand which might be applicable to your business and, therefore, how to properly protect your intellectual property.

What's the difference between a copyright vs. trademark?

Trademark and copyright are both forms of intellectual property, which can be defined as intangible assets, in other words, creations of the mind—such as inventions, literary and artistic works, designs, symbols, names and images used in commerce.

When it comes to intellectual property for businesses, this can largely encompass any business ideas, as well as works or processes that come from those ideas. This being said, in the U.S., trademarks and copyrights, as well as patents, are used to legally protect intellectual property.

The main difference, therefore, between copyright vs. trademark is that, although both offer intellectual property protection, they protect different types of assets and have different registration requirements.

Overall, copyright protects literary and artistic materials and works, such as books and videos, and is automatically generated upon creation of the work. A trademark, on the other hand, protects items that help define a company brand, such as a business logo or slogan, and require more extensive registration through the government for the greatest legal protections.

To better understand the difference, let's break down the details of each of these protections individually.

What does a copyright protect?

A copyright is a form of intellectual property protection that covers original works and is generated automatically by the creation of those works.

Copyright protects literary, dramatic, musical, and artistic works, including:

  • Poetry

  • Novels

  • Other forms of original writing

  • Art

  • Research

  • Movies

  • Songs

  • Other forms of audio and video materials

  • Computer software

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  • Architecture

In short, as long as the original work is preserved in some form, it is protected under copyright when it's created. On the other hand, however, works that are not available in some tangible form—such as a speech that wasn't written down or recorded, cannot be copyrighted.

Other works that cannot be copyrighted include:

  • Ideas

  • Discoveries

  • Principles

  • Listings of ingredients or contents (although a recipe or instructions can be copyrighted)

  • Works that are considered "common property," such as calendars or height and weight charts.

In addition, works that are in the public domain, in other words, for which the copyright has expired, been forfeited, or waived, cannot be copyrighted again. Although the public domain varies based on country (and sometimes the type of work), in the U.S., this currently refers to works published before 1923.

This being said, in the U.S. the duration of copyright can vary. For original works created by an individual, copyright lasts for the life of the author, plus 70 years. On the other hand, works created anonymously, pseudonymously (under a false name), and for hire, copyright lasts for 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.

How to protect a copyright

As we mentioned briefly above, in addition to what copyright and trademarks protect, another difference between the two is how these intellectual properties are protected.

Again, as we've discussed, copyright is generated automatically upon creation of a work, however, there are many precautions you can take to make sure potential copyright infringers don’t use your work without permission.

Here are some examples:

  • Properly marking: You can make sure your work is properly marked, such as signed or with a watermark, and that there’s a clear evolutionary footprint from the work to your business.

  • Poor man's copyright: This is the practice of sending your own work to yourself, thereby establishing that the material has been in one's possession for a particular period of time. However, there is no provision in copyright law for any such type of protection, and poor man's copyright is not a substitute for registration.

  • Creative Commons: Creative Commons offers free copyright licenses that allow you to mark your creative work with the freedoms you want it to carry.

  • Use the copyright symbol: At a minimum, you can use the © symbol to denote a copyrighted work.

Additionally, although not required, you might decide to actually register your work with the U.S. Copyright Office. To do so, you'll have to complete the application process—which includes paying a fee and sending a copy of the work to the U.S. Copyright Office—in order to officially register for your copyright.

Completing this process will add your copyright to the public record, and you'll receive a certificate of registration. Plus, if registration is completed within five years of publication, it is also considered prima facie evidence (i.e. sufficient to prove a case) in a court of law.

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Overall, official copyright registration will make it much easier to sue over the use of your materials by another party under United States’ law.

What does a trademark protect?

A trademark, on the other hand, is a form of intellectual property protection that covers words, phrases, symbols, or designs that distinguish a particular brand (or source of goods) in comparison to others.

Therefore, a trademark protects items such as:

  • Brand names

  • Logos

  • Business names

  • Slogans

In short, a trademark can apply to anything that essentially brands a business or identifies a product or company. Here are some well-known examples:

  • The Tabasco bottle with the hexagonal screw top is trademarked.

  • “Footlong,” all one word, is trademarked by Subway sandwiches.

  • The McDonalds Golden Arch symbol is trademarked.

This being said, when it comes to trademarks, it's important to distinguish between a trademark and a service mark. Although the term "trademark" is typically used to encompass both trademarks and service marks, a service mark is specifically used to distinguish the services of one business from those provided by another.

An example of a service mark is the United Airlines slogan "Fly the Friendly Skies." Although the United Airlines name might be trademarked, the slogan which defines the service they provide, is service marked.

All of this being said, another important difference between copyright vs. trademark is that whereas copyrights expire after a set period, trademarks do not expire.

Overall, trademark rights come from actual use—in other words, using your mark in the course of doing business—and therefore, your trademark can last forever, as long as you continue to use it.

On the other hand, however, just as copyright registration helps better protect you under the law, an official trademark registration does the same. Along these lines, your trademark registration can also last forever, provided you file specific documents and pay the required fees.

How to protect a trademark

So, although registration of a trademark is not necessary, it's certainly one of the best ways to help protect your business's logo, brand name, or slogan.

First, you'll want to do a trademark search to ensure that your branding materials are not already in use. Additionally, you might decide to work with a trademark lawyer to assist in trademark registration, however, you can also complete an online application yourself through the U.S. Patent and Trademark Office (USPTO) website.

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This being said, if, for example, you wanted to trademark your business name, you would check with your state trademark office to make sure the name is not currently in use, and then complete the registration process. Along these lines, it's important to note that there's a difference between state and federal trademark registration, with the latter offering the most legal protection.

Moreover, when it comes to a business name specifically, you can register a business name with your state or county clerk by filing a DBA, but this is not the same as trademarking your business name.

Ultimately, if you do register your trademark with the USPTO, you'll use the registered trademark symbol "®" to indicate that your property is legally trademarked.

On the other hand, if your trademark is not registered through the USPTO, you can use the ™ symbol to signify common-law rights in a trademark, similar to the way copyright law works. In this case,™ is used for goods, whereas ℠ is used for services.

Again, before using these symbols, you'll want to make sure what your trademarking isn’t already in use—and remember, just because something doesn’t have a symbol by it doesn’t mean it’s not legally trademarked.

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Copyright vs. Trademark: What's the Difference? - NerdWallet (1)

The bottom line

As a reminder, the differences can be summarized as:

  • Copyright protects original work, whereas a trademark protects items that distinguish or identify a particular business from another.

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  • Copyright is generated automatically upon the creation of original work, whereas a trademark is established through common use of a mark in the course of business.

  • Copyright expires after a set period of time, whereas a trademark doesn't expire provided the mark continues to be used.

Overall, both of these intellectual property protections can be important if they're applicable to your business. Therefore, if you're unsure of your legal rights or the process involved with officially registering a copyright or trademark, it might be helpful to work with a business attorney or online legal service for advice and guidance.

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What is the difference between copyright vs trademark? ›

Copyrights primarily protect the rights of people who create literary, dramatic, musical, artistic, and certain other intellectual works (like history tests, and software code). Trademarks protect the use of a company's name and its product names, brand identity (like logos) and slogans.

Do I need a trademark or copyright? ›

Copyrights are for protecting individual, authored works while trademarks apply to company-wide elements like logos and slogans. When applying for protection for your intellectual property, it's important to decipher which one you need in order to save you time and money throughout the registration process.

Should I copyright or trademark first? ›

Generally, if you're using your logo in relation to your business and you're selling goods or services utilizing the logo, filing a trademark application should be at the top of your priority list.

Does a copyright override a trademark? ›

No, a trademark doesn't override a copyright since they safeguard different types of work. For example, a trademark protects your company's unique identifiers, while a copyright protects creative works. Therefore, only registered works will receive legal benefits and protection.

Can something be both copyrighted and trademarked? ›

While there is rarely an overlap between trademark and copyright law, it can happen. For example, when a graphic illustration is used as a logo the design may be protected both under copyright and trademark.

Is Mickey Mouse a trademark or copyright? ›

Notably, the version of Mickey Mouse that we all know and love today is under copyright protection until the end of 2030. Disney also has trademark protection on that version of Mickey Mouse.

Can you say copyright without registering? ›

Use of the copyright symbol is more similar to use of the trade mark symbol, as work does not need to be registered in order to use it. You can place the copyright symbol on any original piece of work you have created.

How long does a copyright last? ›

As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years.

Do I have to copyright my logo? ›

Copyright or trademark? Is a logo subject to copyright? Yes. A logo that includes artistic or design elements, (i.e. not just the name on its own), is legally regarded as being a work of artistic creation and therefore will be protected under copyright law.

Should I get an LLC or trademark my logo first? ›

Should you get an LLC first or trademark? Yes, you should get an LLC first before a trademark because the trademark application will need to identify the LLC as the trademark owner. You should create an LLC or business entity before you file a trademark application.

Is copyright more powerful than trademark? ›

Copyright protects original work, whereas a trademark protects items that distinguish or identify a particular business from another. Copyright is generated automatically upon the creation of original work, whereas a trademark is established through common use of a mark in the course of business.

What are 3 things you Cannot copyright? ›

Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks.

Can a logo be both copyrighted and trademarked? ›

Logos are often eligible for both trademark and copyright registration. A copyright protects the original design from unauthorized copying, while a trademark helps prevent the logo from being used by a competitor business..

Is the Apple logo a trademark or copyright? ›

Apple, the Apple logo, Apple TV, iPad, iPhone, iPod touch, iTunes, and Mac are trademarks of Apple Inc., registered in the U.S. and other countries and regions.

What things Cannot be trademarked? ›

What Can't Be Trademarked?
  • Proper names or likenesses without consent from the person.
  • Generic terms, phrases, or the like.
  • Government symbols or insignia.
  • Vulgar or disparaging words or phrases.
  • The likeness of a U.S. President, former or current.
  • Immoral, deceptive, or scandalous words or symbols.
  • Sounds or short motifs.

Is the name Netflix trademarked? ›

Copyright: The Netflix service, including all content provided on the Netflix service, is protected by copyright, trade secret or other intellectual property laws and treaties. Trademarks: Netflix is a registered trademark of Netflix, Inc. Patents: Netflix has patents that apply to our service.

Why does copyright expire? ›

Copyright expiration is important for the public domain. Because once a work's copyright term has expired, the work is free for all to use — to repurpose, to republish, to build upon. The public domain fuels creativity ... and the longer you lock up works, well, you get the idea.

Can I just say my work is copyrighted? ›

If It Doesn't Have the © Then it Isn't Copyrighted

There was a time that this myth was true. However, in the United States, since 1978 there has been no formal requirement to mark your work with the copyright symbol, in fact, there are no formalities at all.

Can I just use copyright? ›

Copyright protects only the form in which ideas and information are expressed. Copyrights expire after a certain period of time. And the law allows certain limited uses of copyrighted material by others, without the creator's permission. The most important such use is "fair use," which is discussed in the next Section.

Do you automatically own the copyright to anything you create? ›

No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.

Who owns a copyright? ›

Copyrights are generally owned by the people who create the works of expression, with some important exceptions: If a work is created by an employee in the course of his or her employment, the employer owns the copyright.

Can you abandon a copyright? ›

Copyright abandonment refers to the voluntary and permanent relinquishment of an owner's rights in a copyrighted work prior to the expiration of the work's copyright term. In general, an author abandons her copyright by forming an intent to relinquish her rights and engaging in an overt act reflecting that intent.

Can someone steal my logo if it's not trademarked? ›

Whether or not legal action is taken for replicating a trademarked logo is fully up to the company or entity that owns the trademark. A company still has legal rights to their logo even if it's not trademarked. So, don't steal it because it's not trademarked.

How much of a logo do you have to change to avoid copyright? ›

The 20 Percent Rule. If you're interested in trademarks and design, you may have heard that you only need to alter a logo by about 20 to 25 percent in order to claim it as your own. It can be inspired by a logo that already exists and is in use as long as it differs enough that it appears to be its own design.

How much does a logo copyright cost? ›

When filing an application to trademark your business name on a federal level through the USPTO, you should count on paying between $250 and $750.

Can I trademark a name without a business? ›

You can't register a trademark for non-business purposes. You can only trademark a brand name that you're using in business or that you intend to use in business in the near future. You can't register a generic or descriptive name. Your trademark name has to be distinctive or unique in some way to be approved.

What is the cheapest way to get a trademark? ›

The easiest and least expensive way to register your trademark is online, through the USPTO's Trademark Electronic Application System (TEAS). Remember that you can only register one trademark per application.

Does an LLC count as a trademark? ›

LLC registrations and trademark registrations are completely separate and different things. If you register an LLC, that doesn't mean you have a trademark in that name or any real kind of trademark protection. Again, you have to actually be using the trademark.

What are 3 advantages of a copyright? ›

The Benefits of Copyright Registration
  • Public Record of Ownership. ...
  • Presumption of Ownership. ...
  • The Ability to Enforce Copyrights by Filing a Copyright Infringement Lawsuit. ...
  • Eligibility for Statutory Damages, Attorney Fees, and Costs of Suit. ...
  • Protection Against Importation of Infringing Works.
Apr 5, 2021

What happens if you use something that is trademarked? ›

Trademark infringement is prosecuted under civil laws, and is not a criminal act. Instead, lawsuits over trademark infringement will usually require you to stop using the trademark, and you may have to return any profits made off of the infringing use, or pay money damages for the use of the trademark.


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