I wanted to bring our conversation back to intellectual property this week and talk about how copyright and trademark, though they may have some similarities, differ. Whether you rely on copyright or trademark protection hinges on, initially, the definition of the two. So, let’s start with a definition of each:
Copyright: The right to copy an original work of authorship fixed in a tangible medium of expression.
Trademark: A word, phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from those of others.
Now that we have the definition down, let’s get into how the two differ. First, I want to point out that some phrases, designs, symbols, shapes, or colors can be protected by both at the same time. Today, though, let’s focus on catch phrases and how the protections may differ.
The primary difference between the two is the purpose for protecting the word, phrase or symbol. Also, the elements to establish your protection differ. Much like the fact a square is always a rectangle, but a rectangle is not always a square, logos and catch phrases used in business are almost always protected by trademark, but not always protected by copyright.
Trademarks are used to identify the source of goods or services. Trademarks can be words, phrases, or symbol (aka “works of art”). The issue in trademark is the use of the word, phrase, or symbol to identify the source of goods or services and not for its artistic value.
Copyright is a protection of an original work. In copyright the issue is the work of the creator. It is the originality of the work and the protection of the creativity of the creator of the work that is important.
In most cases, short phrases are not protected by copyright. There is not much originality in a short phrase and originality is one of the elements for copyright protection. Copyright is designed (especially with language) to encompass creative thought. It would be difficult to establish guidelines for short phrases and how they were protected by copyright, so they are not. There are only so many words in any language and so many ways to express ideas. Different regions develop different turns of phrase and it would be difficult to afford someone protection over a particular turn of phrase in any language.
Trademark law, however is different. Trademarks can protect a short phrase that identifies the source of certain goods or services. An example is:
“Just Do It”
Simply reading that phrase conjures up an entire brand in your mind, doesn’t it? You recognize it as a phrase that describes a certain company’s products. This short phrase,even with all of its powerful imagery, would have no protection in copyright. Nike cannot claim everyone who uses the phrase in any writing is infringing on their copyright. It is not an original phrase. People were using this phrase long before it was used in an advertising campaign.
It is, however, a distinctive phrase. That makes it a trademark. Nike, to protect it’s intellectual property can stop other clothing companies or sports companies from using the phrase on there products and merchandising because it would confuse the public. So, no copyright protection exists for the phrase, but trademark protection because of the distinctive use of the phrase to describe the source of the goods it describes.
Now, of course, the issue of the Nike Swoosh is a completely different issue. Then, we are dealing with artistry and trademark. The creation of a logo can have some copyright elements, though the focus is normally on trademark. It is not a bad idea, if you are a designer, to consider the two different sets of rights that may exist in your creation of a logo for a client as you think about how the licensing language in your contract should read. That, however, is a discussion for a different day.
I will talk to you next week, unless you talk to me first 😉