The differences between trademarks and copyrights can be confusing. Both are similar in the following ways:

• Both are forms of intellectual property
• Both are protected by U.S. statutes and laws — but different statutes and laws apply
• Both can be infringed by others, and infringement litigation can be filed
• Both are valuable business and personal assets that can be sold, licensed, transferred through the laws of inheritance, used as collateral for financing and investments, shared by more than one person/business, etc.
• Both can be registered with their respective governmental agencies — the U.S. Patent and Trademark Office for trademarks and the U.S. Copyright Office for copyrights
• Both must be “affixed” to something — copyrights must be affixed to a “tangible medium” like paper or a record, and trademarks must be affixed to a product, packaging, marketing materials, etc.
• Both have legal protections under common la,w even if not registered
• Both provide nationwide legal protections
• Both have legal protections under international law

However, understand that trademarks and copyrights are very different. The most important difference involves what they protect legally. Copyrights protect original works of authorship like books, movies, art, music, games, photographs, etc. Trademarks protect words, logos, designs, marks, and other things used to identify the commercial source of goods and/or services.

As can be seen, copyrights protect a huge area of creative endeavors while trademarks protect a very narrow business tool. Trademarks vastly increased in importance at the beginning of the radio/television age, when advertising became so important. Copyrights have increased in importance in this Computer Age (or Information Age) since computer code — as a form of writing — is deemed protected by copyright laws.

Other salient differences between copyrights and trademarks can be listed as follows:

• Eligibility — to be eligible for legal protection, trademarks must be used in commerce; as noted, trademarks are business tools; by contrast, original works of authorship are eligible for copyright protection immediately upon creation
• Use — trademarks must be USED in commerce to have legal protections; in fact, trademarks will stop existing legally if they are not used; there is no use requirement for copyrights
• Statutes — at the federal level, trademarks are governed by the Lanham Act, while copyrights are governed by the Copyright Act
• Rights — trademark rights are generally limited to preventing others from using the trademark on their goods/services; copyrights are more expansive, giving authors exclusive rights to reproduce, distribute, display, and create derivatives related to the original works
• Symbol use — trademark owners have at least two symbols that can be used (the TM symbol and the circle R symbol — ® ); copyright owners can use the circle C symbol — ©
• Length of viability — if they are continually used in commerce, trademarks can continue to be viable and legally protected indefinitely; by contrast, generally, copyrights expire 70 years after the death of the creator or, for original works not made by individuals, copyrights last for 95 years from the date of publication or 120 years from the date of creation, whichever is shorter
• Registration requirements for infringement litigation — trademark infringement cases can be filed without having to register the trademark; the opposite is true for copyrights
• Fair use legal doctrines — trademark law permits a very limited “fair use” of trademarks where there is no infringement; the “fair use” is limited to using the trademark to identify the trademark and the product/service; by contrast, the “fair use” exceptions are extensive with respect to copyrights

Can the Same Work Be Protected by Both Trademark and Copyright?

The same creative work can sometimes receive protection under both trademark law and copyright law simultaneously, but the nature of the protection is different and comes from different legal frameworks. A logo, for example, is a common candidate for dual protection. The graphic design of a logo — the artistic elements, color combinations, and visual expression — can qualify as an original work of authorship and receive copyright protection under 17 U.S.C. § 102. At the same time, the logo, when used to identify the commercial source of goods or services, can function as a trademark and receive trademark protection under the Lanham Act.

This dual protection is not redundant. Copyright protects the expression; trademark protects the commercial identity function. They serve different purposes and are enforced through different legal mechanisms. Similarly, a product jingle may be copyrighted as a musical composition while also functioning as a trademarked audio logo. And a character name — like HARRY POTTER — can be both a trademarked brand identifier and a protected element of a copyrighted literary work.

Duration: The Most Practically Significant Difference

The difference in duration between trademark and copyright protection has enormous practical significance. Copyright protection is finite. Under 17 U.S.C. § 302, works created after January 1, 1978 are protected for the life of the author plus 70 years. For corporate works, the term is 95 years from publication or 120 years from creation, whichever is shorter. After expiration, the work enters the public domain and can be used by anyone freely.

Trademark protection, by contrast, can last indefinitely so long as the mark is used in commerce and registration is properly maintained. The USPTO requires periodic filings — Section 8 declarations of continued use between the 5th and 6th year after registration, and renewal applications every 10 years thereafter. A trademark maintained through these requirements can theoretically last forever. The Coca-Cola trademark, first registered in 1893, has been continuously renewed and remains in force today.

Registration Processes: Different Agencies, Different Requirements

Trademark registration is handled by the USPTO under the Lanham Act. The application requires identification of the goods or services associated with the mark, proof of use in interstate commerce (or a statement of intent to use), and payment of filing fees. The process typically takes 12-18 months and involves examination by a USPTO trademark examiner, publication for opposition in the Official Gazette, and issuance of a certificate of registration.

Copyright registration is handled by the U.S. Copyright Office under the Copyright Act. Registration is optional — copyright protection attaches automatically upon creation and fixation of an original work. However, registration provides important practical benefits: it is a prerequisite for filing an infringement lawsuit for works of U.S. origin (17 U.S.C. § 411), it establishes a public record of the copyright claim, and if registered before infringement occurs, it enables recovery of statutory damages (up to $150,000 per work for willful infringement) and attorney’s fees.

Ownership and Transfer Rules

Both trademarks and copyrights can be owned, transferred, and licensed, but the rules differ in important ways. Copyright initially vests in the author of the work. Under the work-made-for-hire doctrine (17 U.S.C. § 101), works created by employees within the scope of employment or certain categories of specially commissioned works belong to the employer or commissioning party. Copyrights can be assigned or licensed, but assignments must be in writing to be effective (17 U.S.C. § 204).

Trademark rights arise through use in commerce, not creation. An employee who invents a trademark while working for a company does not automatically own that trademark — the company, as the commercial user, owns the rights. Trademarks can also be assigned, but a trademark assignment without the associated goodwill of the business — an “assignment in gross” — is invalid under trademark law. This rule exists because trademarks derive their value from the goodwill they represent, not from the mark itself in isolation.

Enforcement: Infringement Standards Compared

The legal test for trademark infringement centers on “likelihood of confusion” — whether consumers are likely to be confused about the source, sponsorship, or affiliation of the goods or services bearing the marks. The DuPont factors guide this analysis. Trademark infringement does not require copying; it requires the unauthorized use of a mark in a way that is likely to confuse consumers.

Copyright infringement, by contrast, requires proof of (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. The “substantially similar” standard is used to assess whether copying occurred. Importantly, independent creation is a complete defense to copyright infringement — if two creators independently arrive at the same expression, neither infringes the other. Independent creation is not a defense to trademark infringement, because trademark law protects against confusion regardless of intent.

Contact Revision Legal

If you have questions about intellectual property law, the experienced attorneys at Revision Legal can help. We represent businesses, entrepreneurs, and individuals across the country. Contact us through the form on this page, visit our intellectual property law practice page, or call us at (855) 473-8474.