We are beginning a new series by our guest attorney blogger, David N. Sharifi, titled IAWTV BLawg. ?Mr. Sharifi is an intellectual property attorney who will offer some great legal perspectives pertaining to new media. ?We also look forward to some Q&A sessions with IAWTV members in the near future.
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To Copyright Or Trademark?
Many confuse the distinction between copyright and trademark protection. Clients often ask for help copyrighting a brand, when they actually need trademark clearance and protection. Therefore the question becomes:what is a copyright, what is a trademark, and what elements of a business or enterprise do they protect?
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TRADEMARK LAW PROTECTS BRANDS & CONSUMERS
Rooted in consumer protection law, a trademark is legally defined as a ?source identifier? related to a product or service provided in the marketplace. Trademarks can be words, phrases, symbols, and/or designs used to distinguish the products of one person or company from those of another. Trademarks often come to represent not only actual products and services, but the reputation of the producer, and are considered a valuable asset by its owners who invest millions of dollars promoting the brand.
A registered trademark can be protected through legal proceedings from misuse and imitation because trademark protection grants owners exclusive rights to registrable and distinctive marks in the class of goods or services identified in the application, for example, Class 5 (Pharmaceuticals) or Class 41 (Education & Entertainment). There are 45 International Classes of Goods and Services, and they cover virtually every business or industry.
Seeking trademark protection is well advised when a person or organization intends to advertise and promote a mark or brand in relation to its goods and services. In such a case, the brand owner wants to ensure that the brand equity built through its promotions can be sustained and capitalized upon, and further that competitors will not unfairly piggyback on the brand?s goodwill.
COPYRIGHTS PROTECT ORIGINAL WORKS OF AUTHORSHIP
Copyrights and trademarks are both intellectual property assets which grant exclusive rights to their respective owners, but the similarities end there. Unlike trademark law, U.S. copyright law codified in the 1976 Copyright Act protects original works of authorship, that is, creative expressions that have been reduced to a tangible form. Copyright protection extends to literary, dramatic, musical, and artistic works, such as poetry, novels, pictorial and graphic works, motion pictures and other audiovisual works, sound recordings, screenplays, musical compositions, and computer software. Whereas for trademark protection, the mark needs to be ?used in commerce?, copyright protection has no such requirement. However a work does have to be ?original? to be protected by copyright, but originality is not a requirement for trademark protection so long as a mark is not likely to confuse consumers.
Copyright protection grants its owner exclusive rights to reproduce, redistribute, publicly perform, display, or prepare derivative works based upon, a protected work. These so called ?bundle of rights? can then be licensed or sold to publishers across various platforms, territory and times.
WHICH ONE IS RIGHT FOR ME??
It depends. Virtually any business or enterprise, including non-profits, can benefit from trademark protection because most businesses market their goods or services under a brand, and trademark protection is the appropriate legal tool to protect a brand from unfair use and competition. On the other hand, copyright law applies to content creators; those who write advertising copy, song lyrics and music, screenplays and novels, computer codes and instructions for mobile applications or websites, graphic designers, directors of feature length films, editors of video shorts, photographers, choreographers, and composers. Since a? copyright may exist in the works these artist and others produce, and since many artists consider their craft as a source of their livelihood, protection of these copyrighted works may be well advised.
To learn more about copyright law visit www.copyright.gov or www.techandmedialaw.com and click on the copyright tab. Look out for future posts where we will discuss how to acquire copyright and trademark protection, defenses to copyright and trademark infringement, the dynamics between trademarks and Top Level Domains, and other forms of intellectual property protection such as patents and trade secrets.
About
David N. Sharifi is an intellectual property and business attorney with a special interest in new media and consumer technology. He is also an entrepreneur and IAWTV member and can be reached at 310-751-0181 or
david@techandmedialaw.com.
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Disclaimer:
The content above is a discussion of legal issues and general information; it does not constitute legal advice and should not be used as such without seeking professional legal counsel. Reading the content above does not create an attorney-client relationship.
Source: http://iawtv.org/2012/03/02/iawtv-blawg-to-copyright-or-trademark/
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