What exactly is the difference between copyright and trademark? 3 Answers as of November 15, 2010

I designed a slogan for a company, and they ended up not using it, and I still have the rights to it. Thing is, I am not sure what I have the rights to exactly. Since it is a slogan, should I protect it through copyright? Or do I protect the design by trademarking it? What exactly is the difference?

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Fish & Associates, PC
Fish & Associates, PC | Robert D. Fish
Copyright and trademark are very different.

Copyright protects against copying, derivating, performing, publishing and distributing of original works (books, paintings, computer programs, etc). If a junior work is created or used independently, (i.e., two people happen to produce similar works), then there is no copyright infringement. The test for copyright infringement is quite complicated, involving access to the senior work, whether there is substantial similarity, the level of abstraction, the amount of the work taken, and various defenses such as fair use. Copyright law is entirely federal, 17 USC.

Trademark protects against usage of a mark in a manner that has a likelihood of confusing the public as to the source or origin of the goods or services associates with that mark. The mark can be anything that identifies the goods or services to the public, including for example a name or logo (e.g. Coca-Cola or Marlboro), a shape (such as the hour-glass Coca-Cola bottle shape), a sound (Harley Davidson misfiring engine), or even a sound, smell or color. Innocent usage is not a defense. The test for copyright infringement is also complex, usually weighing several factors including sight-sound-meaning similarity of the marks, sophistication of the consumers, and channels of trade. Trademark law is both federal, 15 USC, and state.

At times a single act can constitute both copyright infringement and trademark infringement. For example, if you make T-shirts with a Mickey Mouse image, without permission, you would be violating Disneys copyright in the Mickey Mouse image, as well as violating trademark rights by creating a likelihood of confusion that the T-shirts are authorized by Disney.
Answer Applies to: California
Replied: 11/15/2010
Mark S. Hubert PC
Mark S. Hubert PC | Mark Hubert
Trademark protects the source identifier that one does business under or represents his goods and or services by (like the big M for the golden arches at MacDonalds.) Copyright protects a work of art from being used by other than the author or artist and also protects any derivative works from being used by other than the artist or author.
Answer Applies to: Oregon
Replied: 11/15/2010
Michael M. Ahmadshahi
Michael M. Ahmadshahi | Michael M. Ahmadshahi, Ph.D., Esq.
Copyrights refer to those rights that the author of a literary work such as a book, a music CD, or a motion picture can protect and exploit exclusively. A trademark refers to a design, words, or other things that are used in conjunction with a product or service which identify the source of that product or service. For instance, Microsoft logo is a trademark which when put on a product, identifies the product as one that was manufactured by the Microsoft company. In general, slogans or phrases are not copyrightable. A slogan can be trademarked when used in conjunction with a product or service. One may acquire trademark rights, if the mark is used in conjunction with a product or service. Federal Registration of the trademark is not a requirement but it is advisable. In the United States, one may not acquire a trademark unless it is used in commerce. However, there's a process by which one may file an intent to use trademark application but when and if approved, it must be used in commerce within 3 years from the date it is granted.
Answer Applies to: California
Replied: 11/13/2010
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