A trademark speaks to your branding. This can be any word, phrase, symbol, etc. that identifies the source of a good or a service in commerce. Let me use McDonald’s® as a good example. The word “McDonald’s” is a trademark. We call this a standard character text trademark and it would be on its own USPTOtrademark application if you wanted a federal registration for it. The Golden Arches is a logo, but this too is serving as a trademark. We refer to this as an image or stylized trademark. This is the case whenever you are claiming creative aspects like design, color, graphics, etc. This would also go on its own separate trademark application. The phrase “I’m Lovin It” is a tagline or sometimes called a slogan. This is treated as its own text trademark. The term “McNuggets” is a product name and also a standard character text mark as is the term “Big Mac;” you get the idea…
Each text trademark you employ should always be properly cleared through comprehensive trademark due diligence. Before you invest in any trademark make sure you get some legal guidance upfront. It is of course best practice to clear it before you start using any trademark and starting with a strong one is your best strategy. Know as well that merely registering your business name with a state or county agency or acquiring a domain does not convey any right to use that name in commerce as a source identifier or trademark. For example, I can presumably register my new tech start up “Boogle” with theNYS Secretary of State because there is no other business already doing business there under that name, but this does not mean that I would not be infringing on the Google® trademark, which I would be. The onus is on you to ensure the name you choose is not a problem.
Your trademark will be one of if not the most important and valuable business assets you will have and you will ultimately spend more money in support if it than you will anywhere else (advertising, marketing, PR, branding, packaging, etc.). So you owe it to your business and yourself to make sure you handle this properly upfront and the first order of business always starts with a proper and comprehensive clearance.
Whenever you endeavor into investing in a trademark it is very important that you conduct the proper clearance due diligence on all the text names upfront and before you start spending any money in support of it or submit an application to the USPTO. In the US, this means searching under both federal (USPTO) as well as common law because trademark rights stem from use in this country NOT registration. This means that acquiring a federal registration does not necessarily mean that you are not infringing on another’s intellectual property.
That said, where does copyright fit in to all this? Copyright protection speaks to creative expression. This will be things like written literary works, sound recordings, video content, graphic designs, photographs, etc. Since 1978 in the United States any creative expression will be covered by copyright law automatically. This means you do not have to take any specific action like post a notice or file a formal registration in order to receive protection. But if you want to ensure maximum enforceability then you must register the work with the US Copyright Office so to perfect your bundle of federal rights like the right to access the courts, the right to ask for statutory damages (sometimes the only damages worth bringing the case over), the right to attorney fees, etc.
In some cases we see an overlap with trademark and copyright. Using my McDonald’s example above, the Golden Arches logo although serving as a trademark is also protected under copyright law because it is possessed of creative expression as well. So even if my use of it did not infringe on McDonald’s trademark rights, I would presumably be infringing on their copyright unless my use was done under some exemption like fair use.
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FAQs
But the main difference between copyright and trademark is that copyright protects original expressions in works whereas trademark protects the business reputation and goodwill associated with the word, phrase, symbol, and/or design.
What is the difference between a trademark and an LLC? ›
LLCs and trademarks are each an integral part of the business world, but both serve different purposes. While LLCs are legal business entities that protect the personal assets of business owners from lawsuits and bankruptcies, trademarks protect the intellectual property of the business.
What is the difference between copyright and trademark in Legalzoom? ›
Copyrights and trademarks defined
Generally, copyrights protect creative works, and trademarks apply to brand names, phrases, and logos. Copyrights primarily protect the rights of people who create literary, dramatic, musical, artistic, and certain other original works (like history tests, and software code).
Do you need an LLC to copyright? ›
LICENSING INTELLECTUAL PROPERTY
Managing these revenue streams through your LLC is preferable as the company itself, not you as an individual, owns the rights to the copyright. In the context of copyrights, you will need to assign ownership of the copyright to your LLC.
Do I need to copyright or trademark my logo? ›
Is it better to copyright or trademark a logo? It is better to trademark a logo because copyright is typically reserved for works of greater complexity, such as a work of art, book, or song.
Do I copyright or trademark my name? ›
Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Contact the U.S. Patent & Trademark Office (1-800-786-9199), for further information. However, copyright protection may be available for logo artwork that contains sufficient authorship.
Should my LLC own my trademark? ›
Yes, if have an LLC for your business, then your LLC owns the trademarks used by your business. The trademark owner is typically the one who uses the trademark. This means that you will need to list your LLC as the owner of the trademark if you apply to protect it with the U.S. Patent and Trademark Office.
Should I have LLC in my logo? ›
So, do you need to incorporate “LLC” in your logo? In short, the answer is no. In fact, none of your branding/marketing needs to include “LLC,” “Inc.” or “Ltd.” If it is included, this may look amateur. Think of national brands such as Target, Starbucks, and Honda.
Is my LLC name automatically trademarked? ›
While an LLC offers personal liability protection, it does not automatically trademark your business name. To ensure comprehensive brand protection, it's advisable to pursue both avenues.
What makes a trademark legal? ›
Use in Commerce and Distinctiveness. Two basic requirements must be met for a mark to be eligible for trademark protection: It must be in use in commerce. It must be distinctive.
No, It Isn't Possible to Patent a Name
Patents are only issued for inventions, ornamental designs of goods, or plants, not names. To protect your brand name and logo, you will need to utilize the trademark registration service.
Does a trademark override a copyright? ›
Does a Trademark Override a Copyright? No, a trademark doesn't override a copyright since they safeguard different types of work.
What comes first, trademark or LLC? ›
Business owners should form an LLC before registering a trademark for optimal brand and asset protection. A federal trademark provides protection across the US, while a state trademark only protects your brand in one state.
Does LLC protect intellectual property? ›
While forming an LLC can provide protections for you and your buisness, it does not generally provide protection for intellectual property. If your business has developed intellectual property that is patent protection it would be best to speak with an attorney for proper patent protection.
Should I register a trademark as an individual or company? ›
Generally, if a business entity exists then the owner of the trademark should be named as the business entity. This is because technically it's the business that would be providing the goods or services, not the owners of the mark.
Difference Between Copyright and Trademark ...GovDocFilinghttps://www.govdocfiling.com ›
Trademarks and copyrights are intangible assets that bring your company revenue and help you make money directly or indirectly. As a business owner, you need th...
A trademark protects your brand while an LLC protects your assets. Learn how to register a trademark—and the pros and cons for your LLC.
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That doesn't mean the mouse is fair game, however. Disney still holds copyrights on later iterations of Mickey Mouse as well as a host of trademarks involving the character and his name. Steamboat Willie may be in the public domain, but creators should be cautious about using the Mickey Mouse image.
Does a trademark expire? ›
In the United States, a trademark can last forever, so long as it is used in commerce and renewed on time every ten years. To renew a registered trademark, the owner must file the maintenance documents with the United States Patent Trademark Office (USPTO) and meet certain legal requirements.
Do you trademark or copyright an idea? ›
Pantin, Pritzker Pucker Family Clinical Professor of Transactional Law at Columbia Law School says, “Copyright law protects your creative expression but not your ideas. You need to put your idea into some tangible form in order for the idea to become protected under copyright law.”
