What is the difference between a copyright and a trademark?

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Answer: People often confuse copyrights and trademarks.  There is some overlap. A copyright protects entire original works of authorship once they are “fixed in a tangible form.”  Copyrights exist automatically once the work is put into tangible form.  For additional protection, original works can be registered with the U.S. Copyright Office.  By contrast, trademarks are specific words, symbols, logos, designs or phrases that are used to identify the source of a product or service and distinguish it from other products or services.  

Song lyrics, for example, are typically copyrighted.  However, a key phrase from a song lyric, if applied to goods or used in connection with services, can also become a trademark.

A company logo can function as a source identifier for the business and enjoy trademark protection as such.  At the same time, if the logo includes original artwork, the artwork and design of the logo may also separately be protected under copyright.

Trademark protection extends to a logo’s use as a source identifier for specific goods and services. Trademarks are actually intended to protect the general public, ensuring that relevant consumers can expect a certain quality with respect to services offered.  There are certain inherent limitations in the extent and scope of trademark protection for logos. First and foremost is the focus on the nature of the services. Trademark protection for logos is typically limited to the specific class or classes of goods and services covered by the registration, or as otherwise utilized by the trademark owner under what are known as common law trademark rights.  Protection for “famous” logos that have acquired “secondary meaning,” such as the Starbucks’ logo, can extend more broadly to goods and services even those Starbucks does not presently operate in. For the vast majority of other trademarks though, the scope of trademark rights typically only extends to the “same or similar services.”

In general, whether a third-party adoption and use of a logo is infringing is determined by a “likelihood of confusion” analysis. In this regard, a third-party logo that is both close in resemblance and being used to brand the same or similar services might be deemed to give rise to a likelihood of confusion compelling the third-party adoptee to change its logo.  Put another way, when the services being compared are identical or nearly identical, there is a greater presumption of a likelihood of confusion for logos that are not necessarily as close in appearance. Conversely, if the services being compared are somewhat remote from each other, greater similarity ordinarily needs to be shown between the registered logo and the alleged infringing logo.

By contrast copyright may protect a logo as an original work of art. This protection will cover the original protected artistic expression manifested in the logo.  In this regard, a third-party adoptee of a logo who is geographically remote and potentially engaging in unrelated services may nevertheless be liable for copyright infringement.  In other words, where one may not be able to exercise trademark enforcement rights, one might still object to usage based on a separate claim for copyright infringement.