At this point, you know trademarks are important. But, despite the common misconception, a trademark is in no way a substitute for a copyright. The reverse is also true. Today, in part one of this two-part post, we take on an important question many of our clients approach us with:
What is the difference between a trademark and a copyright?
First, we’ll review the one everyone’s somewhat familiar with, trademarks.
What is a trademark?
Trademarks are all about protecting consumers. In operation, they also protect businesses, but the heart of trademark law is about consumers. Trademarks protect consumers because a trademark designates a unique source. When you look at a Coca-Cola can, you know it comes from Coca-Cola. If anyone could use the Coca-Cola logo and that red-and-white packaging, then it wouldn’t mean anything. Consumers would have no idea whether a product they bought was the secret formula the Coca-Cola company has been protecting all these years, or some cheap knock-off. Maybe it was Pepsi in disguise. Thanks to trademark law, when you go out and buy a bottle of Coca-Cola, you know exactly the quality of product you’re getting, good or bad, and you recognize who makes it. Without trademark law, the market would be a really uncertain mess.
Again, trademark law cares most about consumers. For the most part, it seeks to prevent the likelihood of consumer confusion. That’s why we also don’t see Coza-Zola out there on pop cans. And, in another sense, it’s why you can’t go open up the Coca-Cola Brewing Company. Consumers would be confused as to whether there was an affiliation of some kind. In fact, Coca-Cola has reached such fame that it’d be downright problematic if the word Coca-Cola was used by anyone else on any other kind of good . There’s a branch of law called trademark dilution that addresses that. But, cutting to the chase, the touchstone inquiry in a trademark law matter is whether consumers are likely to be confused. It’s why someone can’t open the Sierra Nevada winery tomorrow. It’s why you can’t go sell frozen foods or start a restaurant under a brand name of TGI Fundays. In the first example, it’s not exactly the same sort of good or service, and in the second example, it’s not exactly the same brand name we all know, but it’s all just too close. But, if you wanted to go start making high-tech computer chips under the Sierra Nevada name, you may well be able to do it. Assuming you saw a completely different logo, no green about it, would you think those high-tech computer chips came from the company that brought you that pale ale? That’s essentially what the US Trademark Office is going to be considering when they decide whether to issue a trademark, even when the same name is already registered on a different kind of goods or services. Is the ordinarily prudent consumer likely to be confused?
So, how do you get trademark protection?
Generally, you automatically get a mini sort of trademark protection whenever you open a business and start engaging in commerce. But, you can seek broadband nationwide trademark protection when you start engaging in commerce across state lines (in a brewery’s case, selling beer out of state) or you plan to engage in that sort of commerce within a few years. Again, though, a trademark only protects your business from any subsequent branding uses that would confuse consumers. If a brewery opens up with a name that has a word in common with yours, that might not be a problem, depending on the word. If you’re New Belgium or a consumer familiar with them, we expect Zen Belgium Brewing would feel a lot different than Old Belgium Brewing. Three letters, one word, big differences in overall consumer impression. But, let’s move on.
What is a copyright?
In contrast to trademark law, copyright law is concerned with protecting original works of authorship (that are fixed in a tangible medium of expression, but we’ll keep it simple for now). The deal is, once you create something, you’re in the realm of copyright law. But, the thing you create has to be more than just an idea, it has to be creative, original, and actually expressed. Your brewery’s name in Helvetica font? Not going to cut it. A highly stylized logo design with graphic elements? Now we’re talking. The artwork on your beer cans is probably protectable. That clever description you wrote about your beer? In the realm of copyright law. That beer name you just came up with? Nope, that’s trademark law. That Kickstarter promo video you just put together? Copyright law. Whereas trademark law is worried about consumers being confused about where things come from, copyright law wants to protect art/creativity by keeping creators from being completely ripped off. If you wrote a song and anyone could go cover it, or stick the chorus in their song and make millions of bucks without paying you a dime, we’d be worried you’d stop writing songs. You get the idea.
As you can start to see, trademark law and copyright law concern different things, but there can be some overlap, too. For example, if Pepsi started running holiday ads with pictures of real-life polar bears on its packaging, we’d mostly be in trademark land; polar bears, though usually cartoons, are a Coca-Cola branding thing. If Pepsi went and found last year’s Coca-Cola holiday ad and just had its graphic designers switch every Coca-Cola logo with a Pepsi logo, we’d still have a foot in trademark land but we’d really be in copyright land, too. Exact copying or the creation of something substantially similar, that’s what copyright law is about. And, copyright infringement can be a whole heck of a lot easier to prove than consumer confusion.
How do you get copyright protection?
The great thing about copyright law is that you instantly get nationwide protection. Your kid makes a finger painting? Bang, there’s copyright protection. That email you just sent? It’s actually copyrighted. But, here’s where businesses, breweries, and artists slip up, and it’ll be the main focus of the second part of our post tomorrow. Although copyright protection happens automatically, there are major benefits to taking active steps to protect your copyrighted works. Say you have a killer beer label design. It’s automatically protected by copyright, but does your brewery own the copyright or does it actually belong to the graphic designer you hired to make it? Probably the latter, and that can be a scary thought. And, putting aside the important issue of ownership, if you don’t actively and quickly register your new copyrighted works, which is mega-mega-mega cheap to do, you miss out on the most substantial perks that might well nip improper copying in the bud and, at any rate, make your case so strong that anyone ripping you off would rather pay up front to settle with you than take it into court. More on that tomorrow.