Trademark vs copyright: what a maker actually owns

Trademark vs copyright vs patent: the difference in one table

Trademark, copyright and patent are separate kinds of intellectual property, handled by different federal offices: the USPTO grants patents and registers trademarks, and the Copyright Office at the Library of Congress registers copyrights. In short, a trademark protects the name and marks that tell buyers a product comes from you, copyright protects creative works such as drawings, photos and text, and a patent protects how a product works or how it looks.

What a maker owns: shop name, logo, artwork and product design

The table maps what a maker usually creates to the right that fits each one, using the USPTO's and the Copyright Office's own wording.

Example: a candle maker sells candles under a shop name, with a hand-drawn fox on the label. The shop name can be a trademark for candles once it is used on them. The fox drawing is the maker's own artwork, so copyright covers it from the moment a work is created and fixed in a tangible form, and as an artistic logo on the labels it may also be protected as a trademark. A new jar shape could qualify for a design patent, which covers a new, original, and ornamental design for an article of manufacture. The scent recipe, written as a plain list of ingredients, is not protected by copyright.

What a trademark protects, and what it does not

For a maker, a trademark is usually the shop name, the name of a product line, and the logo on labels, packaging and the shop page. The USPTO notes that a trademark is used for goods, while a service mark is used for services.

Trademark rights depend on context. You do not own a word or phrase in general: your rights cover only how that word or phrase is used with your specific goods or services. In the USPTO's own example, a small woodworking business uses a logo as its trademark. The USPTO adds that this doesn't mean you can stop others from using a similar logo for non-woodworking related goods or services.

You own a trademark as soon as you start using the trademark with your goods or services, but those unregistered rights are limited to the geographic area where you provide your goods or services. Federal registration creates nationwide rights in the trademark. Without registration, the USPTO warns, anyone could misuse your brand or create one so similar that people cannot tell the difference.

You can use TM for goods or SM for services, even before you file an application. Use ® with the trademark once you register it with the USPTO, and only for the goods or services listed in the federal trademark registration.

The federal base application fee is $350 per class of goods or services, and you may need to pay additional fees based on the completeness and complexity of the application. To keep a registration, the owner files documents at regular intervals. For example, the owner files a declaration of use or excusable nonuse every 10 years, together with a renewal application, and those two filings cost $650 per class. After registration, the USPTO is not an enforcement agency, so the owner pursues infringing users.

What copyright protects for makers

Copyright covers literary, dramatic, musical, and artistic works. For a maker, that means the drawings, paintings, prints, photographs and listing text you make yourself.

Protection is automatic, and in general, registration is voluntary. Registration still matters if someone copies you, because you have to register before you bring a lawsuit for infringement of a US work. The Copyright Office also notes that registered works may be eligible for statutory damages and attorney's fees in successful litigation, and that registration made within five years of publication is considered prima facie evidence in a court of law.

Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way they are expressed. Mailing a copy of your work to yourself, sometimes called a poor man's copyright, is not a substitute for registration.

For a work you make today under your own name, copyright lasts the life of the author plus an additional 70 years, and there is no renewal to file: works created on or after January 1, 1978, are not subject to renewal registration. Filed online, registration costs $45 for one work by one author on the single application, $65 on the standard application, and $85 for a group of two-dimensional artworks.

Patent vs trademark and copyright vs patent

A patent protects an invention. It gives the inventor the right to exclude others from making, using, offering for sale, or selling an invention, and it applies only within the US and its territories and possessions.

For a product maker, the patent types that fit are utility and design patents. A utility patent lasts up to 20 years from the date the first non-provisional application was filed, and the owner pays maintenance fees on a set schedule to keep a utility patent in force. A design patent lasts 15 years from the date of grant.

Patent vs trademark: a trademark identifies who a product comes from, while a patent covers the product itself, either how it works or how it looks. For example, a ceramic mug sold under your shop name can carry a trademark on the name and, if its shape qualifies, a design patent on the shape.

Copyright vs patent: copyright covers creative expression and starts on its own, while a patent covers an invention or product design and has to be granted. For a patent to issue, the invention must meet four conditions: it must be able to be used, it needs a clear description of how to make and use the invention, and it must be new and not obvious.

Trademark vs copyright for a logo

A logo is the item that most often sits under both laws. Used as a brand mark on labels, packaging and your shop page, it works as a trademark. As a drawing, it can also carry copyright: the Copyright Office says protection may be available for logo artwork that contains sufficient authorship, and that an artistic logo may also be protected as a trademark.

A logo made only of your shop name in plain lettering leans on trademark, because copyright does not protect names, titles, slogans, or short phrases. If a designer drew your logo, check your agreement for who owns the copyright in the artwork before you register anything.

How to protect what you make, in order

A practical order for a small shop. This is general information, not legal advice; an attorney can tell you what fits your case.

1. Keep your original files

   Keep sketches, layered files and first photos, so you can show what you made and when.

2. Search before you settle on a name

   The USPTO encourages you to search the internet, state trademark databases and business name databases for similar trademarks. A name already used on related goods is a weak choice for a new shop.

3. Register the brand name once the shop is set

   Federal registration creates nationwide rights in the trademark, while a state registration gives rights in that state only.

4. Register the artwork that sells or gets copied

   Registration matters if someone copies you, because you have to register before you bring a lawsuit for infringement of a US work. A group of two-dimensional artworks costs $85 to register.

5. Talk to a patent professional about real inventions

   Consider a patent only for a new mechanism or a new product shape, and ask a patent attorney or agent whether it meets the conditions above.

State rules, other countries and the limits of this page

This page covers US federal law. Trademark rules vary by state: registering with a state gives rights in that state only, and not all states have trademark registration databases. Local rules can also differ by state, county and city, so check the rules where you sell.

Outside the US, a US patent does not help, because it applies only within the US and its territories and possessions. For copyright, the US has copyright relations with most countries throughout the world. If you sell abroad, check each country's own rules.

This page is general information, not legal advice. For a specific name, logo or product, ask an intellectual property attorney.

Where Nation fits

Questions about trademark, copyright and patent