LawyerLandLegal Glossary

Trademark vs Copyright

Two different protections that are constantly confused: one protects what identifies your source, the other protects what you created.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

These protect different things, arise differently and last for different periods, and using the wrong one is one of the most common mistakes small businesses make.

A trademark protects what identifies the source of goods or services - a name, logo, slogan or other indicator that tells buyers who something came from. The right grows out of actual use in commerce, and it exists to prevent confusion about origin. Registration is not what creates it, though registration adds substantial advantages. It can last indefinitely, for as long as it is used and defended.

A copyright protects an original creative work fixed in a tangible form - text, photographs, music, code, video. It attaches automatically the moment the work is fixed, with no filing required, though registration is a practical prerequisite to enforcing it in court and affects what can be recovered. It lasts for a long but finite term and then the work enters the public domain.

The line is drawn by function, not by medium. A logo can be both: protected as a trademark for identifying the business, and as a copyright for its artistic expression. A business name, on the other hand, is generally not copyrightable at all - names and short phrases are not the kind of thing copyright covers - which surprises people who assume registering a company protected the name.

Where this comes from

Trademarks are governed federally by the Lanham Act, which defines a trademark at 15 U.S.C. § 1127, alongside state trademark and unfair-competition law. Copyright is governed by the Copyright Act, whose subject matter is defined at 17 U.S.C. § 102 - original works of authorship fixed in a tangible medium of expression - and which preempts most equivalent state claims.

When people hire a lawyer for this

Before committing to a name is when advice is cheapest, because a clearance search that finds a conflict costs far less than a rebrand after a demand letter. Beyond that, the recurring problem is ownership of commissioned work: absent the right written agreement, the freelancer who made the logo or wrote the code may own the copyright even though the business paid for it.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.