Trademark vs Copyright: How To Choose and Key Differences (2024)

In the US and Canada, trademark and copyright are two very popular and common legal terms—you’ve likely seen the symbols ™, ®, or © affixed to various brand names, logos, or titles. 

Both trademark and copyright offer some degree of long-term protection for your creation, barring others from unauthorized use of your intellectual property. But despite any similarities that often get them confused for one another, trademark and copyright serve distinct purposes. 

It’s important that any small business owner has a basic understanding of their differences and similarities. Although both offer protection of intellectual property, what they protect and how makes them very different legal tools. This guide shares the differences between trademark versus copyright and when to use either type of protection. 

What is a trademark?

A trademark is a legally recognized symbol, word, color, shape, or phrase that distinguishes a company’s products or services from others. This protection helps prevent consumer confusion and unauthorized use by competitors. In many jurisdictions, trademarks can also protect colors, holograms, moving images, modes of packaging, sounds, scents, tastes and textures.

What is copyright?

Copyright law serves to protect the intellectual property of creative works, such as literary works, visual art, or music. This could include things like logos that can also be trademarked, but is not exclusive to trademarked images and the like. The copyright owner of a given creative work has exclusive rights to display, distribute, reproduce, or perform the work—and may be entitled to compensation when others borrow from or reproduce aspects of the work.

Trademark vs. copyright

Although trademark and copyright law share some features because they both reside in the general realm of intellectual property protection, some major differences set them apart.

Protectable elements

A trademark can protect signs such as words, logos, design elements, and even certain phrases or slogans that might define your business’s brand. Copyright protects expressive creations you or your business may produce. These can include (but are not limited to) literature, artwork, photographs, software code, sound recordings or video content.

Requirements

A trademark must be distinctive and not confused with other terms in the same context. In the United States and Canada, neither trademark nor copyright protection strictly requires a formal registration, but any attempts at enforcement of either may be hampered without one. 

Terms of protection

Trademark protection needs to be renewed every 10 years. Copyright protection, however, automatically applies and generally lasts for the lifetime of the author plus 70 years.

Rights granted

Trademark protection prevents anyone else from using your trademark in a way that might confuse customers. Copyright gives you the sole right to reproduce your work. Someone couldn’t republish a copyrighted blog post on their own website, for example. 

When do you need a trademark vs. copyright?

Businesses often use trademarks to protect brand identity and goodwill. This includes assets associated with logos, certain unique design elements to that logo, and even some distinct marketing or branding language such as identifying slogans. 

If your business uses certain stylistic branding elements to distinguish your goods or services in the marketplace, you may want to pursue trademark protection for them. A registered trademark gives you pathways to legal remedies if a competitor copies some or all of your branding to lure away your customers.

Yet it works both ways: If a close competitor already has adopted a similar trademark, obtaining a registration may not be possible, because the competitor may be able to oppose the application.

Copyright protection protects creative works your business has produced, such as business literature, video content, or an artistic work of some kind. Similar to trademark protections, copyright provides legal recourse if someone misappropriates your work.

What are the benefits of protection?

Nationwide recognition

Both registered trademarks and copyrights protect your assets—nobody else can use them without your permission. These restrictions apply nationwide, and in the case of copyright, in other countries as well. In the case of trademarks, you may choose to pursue registration in more than one country. For example, you might want to seek registration in each of the jurisdictions where you do business.

Legal presumption of ownership

Registering a trademark means that you can be assumed as the legal owner of your business. This means that if someone initiates a legal dispute over the trademark, you are recognized as the legal owner, making it easier to enforce rights against those who infringe. 

Another benefit of federal trademark registration in the US or Canada is that the trademark is protected across the whole country. There are, in some countries including the US and Canada, rights that can be acquired in a mark through use without registration; however, those rights are limited to the geographic area where the mark was used.

Legal remedies

If you hold a trademark or copyright, you can sue people who infringe on your rights. If you trademark your brand name, for example, competitors can’t piggyback off your brand name and confuse customers into thinking that you’re associated with them and if they do, your trademark may allow you to take legal action. 

Copyright law also protects you if someone uses your original work without permission. If someone has published your product photographs without consent, for example, you can bring legal action against them—similar to with trademarks. 

Deterrent against infringement

Registering a trademark or copyright strengthens your brand identity, allowing your business to build trust and loyalty while safeguarding your intellectual property in the marketplace. Bad actors may be less likely to infringe on your protection if they know you can sue them for unauthorized use. 

Ability to sue in federal court

In the United States, you can sue for both copyright and trademark infringement through a federal court. Trademarks are protected by the Lanham Act, whereas copyright-related legal issues are governed by the Copyright Act of 1976. Canada also allows suits for copyright and trademark infringement to be filed in its federal courts.

Even if you don’t have a formal registration approved, “common law” rights mean you could seek either of the following: 

• Injunctive relief, which stops the infringer from continuing to use your protected work.
• Monetary damages, such as for revenue you’ve lost because another retailer used your brand name or slogan to pry customers away from your business. 

Common misconceptions about trademarks and copyrights

The following statements are all common misconceptions. Here’s why they’re false, and what’s true about trademark and copyright laws instead. 

Trademarks and copyrights are the same

Trademarks and copyrights are not the same; they have multiple differences. For example, the types of protectable content are different under trademark versus copyright law. Trademarks are primarily used to protect symbols, words, or phrases, whereas copyright also protects a wider variety of creative works, such as sound recordings, books or artwork in many mediums. 

Copyright protects ideas, not just expressions

Copyright laws don’t allow you to protect an idea, but you can protect the way that idea is expressed. For example, you aren’t able to protect the concept explained in your book or article, but you can copyright the way you expressed it. 

Trademarks last forever without renewal

Trademarks are not held indefinitely. A trademark theoretically lasts for as long as the holder uses it in ordinary commerce, but simply using the trademark is not sufficient to demonstrate continuous, ordinary use. 

In the United States, a trademark holder must file a Section 8 declaration every 10 years from the date of registration, demonstrating that the trademark remains in use. A renewal fee must also be paid. Failing to do either will result in the trademark being deemed “dead,” which means another party can potentially adopt and register it. Renewal of trademarks is also required in most other countries, including Canada.

You need to register a trademark to have legal rights

Maximum trademark protection applies when your trademark is formally registered. However, “common law” rights mean you could still have some legal protection if somebody uses a slogan, name, or image that you’re using to identify or distinguish your brand.

Common law rights also tend to be limited to the geographic area where a mark is used. If you’re using a slogan to sell to customers in New York, for example, you might not have any legal protection against another business adopting the same slogan to reach customers in Los Angeles even though you may have built common law rights in the mark in New York.

It’s also harder to prove ownership for trademarks that aren’t formally registered. That’s another reason why legal registration with the United States Patent and Trademark Office is the best way to deter others from using your trademark.

Copyright needs to be registered

You are not required to register a copyright for your creative works. Copyright laws automatically protect any original work you’ve produced, such as a video, illustration, or audio recording. Eligible work must be in a tangible form (e.g., text published on your website) and completely original.

That said, you don’t have maximum legal protection unless the copyright is formally registered. In the United States, your copyrighted work must be registered with the US Copyright Office before formally suing an infringer. Obtaining a registration can take many months, so you may not want to wait to encounter an infringer before you seek copyright registration.

Trademarks only protect logos

Trademarks can protect any symbol, word, or phrase that protects your business’ intellectual property—trademark law is not limited to logos. McDonald’s, for example, trademarks phrases like “McDelivery,” “McNugget,” and “Egg McMuffin” to prevent other fast food chains from using the same names for their own products. 

Trademarks can also cover scents, sounds, and colors—like the lion roar shown at the start of any MGM movie, or UPS’s signature Pullman Brown color. 

This post is a simplified, high-level introduction to some aspects of trademark and copyright protection. Intellectual property is complex and IP law varies between jurisdictions. To obtain more comprehensive information or for advice applicable to your specific circumstances, we strongly recommend that you contact a lawyer or other relevant legal professional in your jurisdiction.