Do I have a trademark or a copyright?

You know you’ve got IP, you’re just not sure what kind.  Fear not!  People often confuse copyrights and trademarks.  Here’s some simple information that every entrepreneur should know so that they can accurately identify their intellectual property:

Copyright: A copyright is an expression of something – software code, sculptures, photographs – in a tangible medium.  Legalese aside, what does that mean?  The “expression in a tangible medium” refers to that place and time when an idea makes the leap out of your head and into the real world for all to see.  An idea is just that: an idea.  It’s the act of expression which gives you intellectual property ownership rights.

Trademark:  A trademark is something – a word, image, sound, smell (!) – that identifies a good or service with its provider.  For example, the “Swoosh” symbol is an image placed on athletic apparel that allows consumers to identify Nike as the provider of those goods.  The word “trademark” is often misused in everyday language.  Someone can claim they have a trademark on a certain phrase (e.g. “Cowboy Up!”), but until that phrase becomes a source identifier for a certain good or service, it in no way functions legally as a trademark.  It’s just the meme of the day.

The Intersection Between Copyright and Trademark:  Sometimes a thing can start as a copyright and then evolve into a trademark.  Let’s say I (poorly) draw a picture of a flame.  As soon as I’ve committed that image to some format – whether it be digital or paper – I now have a copyright in that image.  Now, let’s say that I like that image so much that I start using it wherever I advertise Ember IP’s legal services.  Now that flame image is used to help consumers identify Ember IP as a source of legal services.  It’s the transition from being a stand alone image to representing something more that is the dividing line between the copyright and the trademark.

Questions?  Please contact me at [email protected]

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