Wednesday, October 14, 2009

The difference between Trademarks and Copyrights

"I have a great name for a product – can I copyright it?"

"I developed a great software application, can I trademark it?"

As to the first question, the answer is no, but you may be able to trademark it (i.e., obtain a federally registered trademark). The answer to the second question is also no, but the software enjoys copyright protection and may even be patentable.

Copyright Law protects original works of authorship that are fixed in a tangible medium Those original works range from books and songs to paintings and photographs to software code. It is important to note that it is not the idea itself that is copyrightable but the expression of the idea. For example, Ansel Adams, a famous American photographer of the West, took many pictures of Yosemite National Park, the Grand Canyon and the Tetons. Once the image he saw in his camera was fixed on the negative, his copyright in it and the subsequent photographic print was created. If I photocopy one of his prints, I have violated his copyright. If, on the other hand, I manage to stand in the same place he did and capture an identical image, I have not violated his copyright. Rather, I have created my own copyrighted material. It is the expression of ideas that is protected, not the ideas themselves.

Copyrights arise the instant the work is fixed in a tangible medium. Federal registration of copyrights is handled by the Copyright Office,, a division of the Library of Congress. There is no need to register a copyright in order to own one but protection is enhanced if you do.

A trademark is commonly referred to as a source indicator. It is intended to identify the source of goods or services and to enable the public to distinguish among goods and services. Two great examples of strong trademarks are "Coke" and "Pepsi". While copyrights arise on creation, trademarks are dependent on use. The phrase "use it or lose it" is apt in the trademark world. Unlike copyright, priority is important in trademark use. In almost every reported case, the first user of a trademark, for a particular good or service, will have priority over a subsequent user of the same trademark, for a similar good or service.

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