This comes up all the time.
I think it’s important to point out at the outset that this discussion centers around colloquial versus legal use of these terms. Terminology in law is often obnoxious and persnickety, and this is no exception.
People want to trademark their logo, and they want to trademark their brand. To be fair, I’ve even used these colloquialisms in an effort to capture that delicious SEO juice. But it’s incorrect and it gives lay people the wrong impression about what gives rise to a trademark or a copyright. In short, you register a trademark; you register a copyright. You do not trademark a logo; you do not copyright a photograph.
To understand why this is important, let’s look at what exactly does give rise to a trademark or copyright. (I have written about this topic before, so take a look if you’re interested in learning more.)
A copyright is an original work of authorship fixed in a tangible medium. It exists as soon as you create it.
If you aren’t asleep at this point, I’ll explain. Let’s start with “original.” An original work is not a novel work; instead, an original work is one that owes its origin to the author. Basically, who painted the painting? Who wrote the song? Who wrote the book? You get it. For a copyright to exist, there must also be some modicum of creativity involved. Skill, labor, and investment of time are not enough. It’s enough to know that this is a very low bar. If you wrote a poem, for example, you don’t need to worry about whether your poem is creative enough. It is.
So as long as (a) you created the work and (b) were minimally creative about it, you have a copyright in that work. You do not need to register the copyright. You own a copyright in the work as soon as you complete the work (i.e., fix it in a tangible medium). That said, if you are a creating copyrighted works, you should strategically register those works to gain the benefits of registration, which include an entitlement to “statutory damages” if you someone steals your work after you register it. Statutory damages automatically entitle you to between $750 and $30,000 per work. And if you can show willful infringement, then you may be entitled to up to $150,000 in damages.
A trademark is a word, phrase, symbol, or design that identifies and distinguishes the source of the goods of one party from those of others. It exists as soon as you begin to use it.
So a trademark, like a copyright, exists as soon as you begin to use it to identify the source of your goods (e.g., NIKE to indicate what company the shoes come from). Which means you are not “trademarking” anything. Instead, you are registering a trademark so that the government (state or federal) knows that you’re using it. Using your trademark without registering it does not give your rights the same scope they will have if you pursue either a state or federal registration. More about that here.
Hope this helps clear the issue up.[/vc_column_text][/vc_column][vc_column column_padding=”no-extra-padding” column_padding_position=”all” background_color_opacity=”1″ background_hover_color_opacity=”1″ width=”1/3″][image_with_animation image_url=”3531″ alignment=”” animation=”Fade In”][vc_column_text]
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