What is the difference between a Trademark and a Copyright?

They are similar, but have a few key differences. USPTO (United States Patent & Trademark Office) has a great chart comparing them. In short, a Trademark (or Servicemark) is “A word, phrase, design, or a combination that identifies your goods or services, distinguishes them from the goods or services of others, and indicates the source of your goods or services.”  A Copyright is “Artistic, literary, or intellectually created works, such as novels, music, movies, software code, photographs, and paintings that are original and exist in a tangible medium, such as paper, canvas, film, or digital format.”

In general, Trademarks protect a company while Copyright protects individual works. The reason Trademarks were developed is for consumer protection. If someone is selling Coca Cola, you know what you are getting. No one else can sell a soft drink and call it that. This is also why generic names often are unable to get a Trademark. One of the main hurdles to registering a Trademark is the review and consideration of the likelihood a consumer will confuse marks. Again, the USPTO has a detailed PDF about how they evaluate Marks.

How does a Logo fit in?

A logo can be part of a Trademark. But not all logos (or graphics) qualify to be Trademarked.

A Logo is often the first thing people think of when they think of a company, it helps them recognize you from a distance, find you on a shelf crowded with other similar items, etc. It should reflect your business in a positive way, be memorable, distinct, and easily recognized – often at a distance.

Is this why Stock images are bad to use as Logos?

YES! Absolutely.

• First stock sites explicitly prohibit you from using their images as Logos. A Trademark would allow you to prevent the Copyright holder from licensing that image to others. That’s a deal breaker right there of course. You are given a license to use the graphics in a certain manner, but you are not given the copyright to the images. That is retained by the original creator. From Adobe Stock’s T&C –

“You must not… register, or apply to register, a trademark, design mark, service mark, sound mark, or tradename, that uses any Stock Asset (in whole or in part); or claim ownership rights in an attempt to prevent any third party from using a Stock Asset;”

Using stock images – even if you alter or combine them can result in a cease and desist order or lawsuit. Neither is good for your business or pocketbook. 

• Second – the whole point of a logo is to distinguish yourself from other businesses. You can’t do that if you’re using the same mountains in the background that appear on other labels, blog posts, website banners, etc. You want to be recognized for you.

Logo design, and branding in general should be part of a business’s strategic plan.

Many of the same questions graphic designers ask are the same as one asked when creating a business plan.

• Who will buy your product?
• Who is the product ultimately for?
• Where will you be doing business?
• What are your plans for growth?
• Do you plan on Trademarking or Servicemarking the logo?
• How will you be using the Logo?

All of these questions, and many more are part of the design process. Knowing your competition is important, as the design should help differentiate you from them.

Summary

• Copyright protects content creators
• Trademarks protect Consumers and Companies
• Logos can be part of a Trademark, but must be properly sources/created

Your company’s branding is important! It should be unique, recognizable and relate to the feel of your company. Dedicate the time to properly research and plan how you will use each. If you do decide to go the Trademark route, an attorney specializing in Trademark law can be extremely helpful in navigating the process and help with initial research.