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"Do I need a trademark or a copyright?"

by Shakeria Northcross, Esq.


As an entrepreneur, protecting your brand’s intellectual property can make or break your business. Intellectual property adds value to your business. Intellectual property includes trademarks, copyrights, patents, and trade secrets, but people are most curious about trademarks and copyrights.


Trademarks

So, what exactly is a trademark? A trademark is a design, symbol, word, or combination legally registered to identify or distinguish a business, service, or product. To be considered a trademark, a mark must be distinctive, meaning it must be capable of identifying the source of a particular good or service. Trademarks can include colors, scents, and sounds. 

The purpose of a trademark is to protect the interest of buyers by prohibiting the use of marks that are confusingly similar to a registered trademark. The owner of a registered trademark has exclusive rights to the mark and can take legal action to prevent the use of that mark nationwide.


Copyrights

When do you need a copyright? A copyright is necessary to  protect literary, dramatic, musical, artistic, and certain other intellectual works. Creative or intellectual works include poetry, novels, movies, songs, computer software, and architecture. An original work is created when it is fixed in a tangible medium (copy or sound recording) for the first time.


Copyrights are so important that Article I, Section 8, Clause 8 of the United States Constitution mentions copyright protection. The owner of a copyright has exclusive rights to publish, license, sell, print, display, distribute, and perform the work.


It is important to understand why it is necessary to protect your intellectual property. Let's say that your business uses a certain logo that you have not officially registered as a trademark. After using this logo for two years, your business receives a cease and desist letter demanding your business to stop using this logo because another business has officially registered it. The law says that the business that successfully registered the logo as a trademark first, owns the right to use it. This means that your business could face a lawsuit or be forced to stop using that logo. As an entrepreneur, you want to start out building your brand around intellectual property that you own.



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