As an INDIECreative, I want you to know the difference between a copyright and a trademark. There’s much more to this World of IP (Intellectual Property), but this is what separates the hobbyist from the business entrepreneur.
Copyright It’s all about Image
Copyright is the set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. These rights can be licensed, transferred and/or assigned. Copyright lasts for a certain time period after which the work is said to enter the public domain. Copyright applies to a wide range of works that are substantive and fixed in a medium. Some jurisdictions also recognize “moral rights” of the creator of a work, such as the right to be credited for the work.
In other words, a copyright is applied upon the moment you lay pencil to paper. This isn’t to say that you’re immediately protected (only in a few cases) as it is crucial that you submit your image(s) to copyright.gov for the ultimate protection. If you are to create a series or body of work that is all similar in style, you have the right to trade dress protection inside the copyright application. See Trade Dress below.
Trademark It’s all about the Name
A trademark or trade mark is a name, symbol, or other device identifying a product, officially registered and legally restricted to the use of the owner or manufacturer. This is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products with which the trademark appears originate from a unique source, and to distinguish its products from those of other entities.
This means, a name is created for a body or work or company and that’s when one applies for a trademark. For example, upon my series of CalligraphyCats and CalligraphyDogs, I applied for a trademark to provide an umbrella over all of them to prevent anyone from using that ingenious alliteration.
Servicemark It’s all about the Service
A servicemark is a mark that is used in the sale or advertising of services to identify the services and distinguish them from the services of others. This is is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the services to consumers with which the trademark appears originate from a unique source, and to distinguish its services from those of other entities.
If a company is primarily a service company (think plumber, electrician, or bookkeeper) and has crafted a tagline, this is when one applies for a servicemark. A plumber for example, could be ‘Roto-Router’, a bookkeeper could be ‘Making Sense of Cents’, an electrician’s service mark could read, “Amp Up”. Now, if that electrician wanted ‘AC/DC’ then he would lose because the rock band has already claimed that mark many decades ago.
What’s the Difference Between an R and a TM/SM?
- TM/SM (trademark or servicemark) is used on your products/services in the beginning as you’re submitting an application for registering.
- You can begin using the R ® (register) Once the USPTO.gov notifies you that the process is complete.
Trade Dress It’s all about unique consistency
Trade Dress applies to a product’s physical appearance, and may also refer to the manner in which a product is packaged, wrapped, labeled, presented, promoted, or advertised, including the use of distinctive graphics, configurations, and marketing strategies. This can include a series of books or illustrations.
Keep in mind, that after years of crafting your skill and running your business, someone comes along and decides to copy you, they are taking something away from you. Your business is similar to birthing a baby. Your business is filled with your blood, sweat, tears, and countless hours of no sleep, so why would you allow someone to just come in the middle of the night and steal your child? You wouldn’t. Regardless if intentional or coincidence, you should take action and defend the right to your business. After all, it’s about your brand and hard earned reputation.
In intellectual property law, a Cause of Action for trade dress infringement may arise when the trade dress of two businesses is sufficiently similar to cause confusion among consumers. In such situations the business with the more established or recognizable trade dress will ordinarily prevail. Two remedies are available for trade dress infringement: injunctive relief (a court order restraining one party from infringing on another’s trade dress) and money damages (compensation for any losses suffered by an injured business).
Countless times I have had to defend my intellectual property rights with my CalligraphyPets. It’s no easy task but it’s part of the business. Large companies take the time to defend their copyrights and patents, you should, too!
Like Trademarks, trade dress is regulated by the law of Unfair Competition. At the federal level, trade dress infringement is governed primarily by the Lanham Trademark Act (15 U.S.C.A. § 1051 et seq.); at the state level, it is governed by similar Intellectual Property statutes and various common-law doctrines. Both state and federal laws prohibit businesses from duplicating, imitating, or appropriating a competitor’s trade dress in order to pass off their merchandise to unwary consumers.
TIP: I use Google Alerts to watch for thieves and infringers of my products. You can do the same.
Here’s to Cultivating Your Creative Independence