The Confusion over Trademarks

Many people don’t seem to understand the differences between trademarks, copyrights and patents.

It's an interesting world out there, full of signs, slogans, logos,
books, artistic work, and too many other things to mention in a short
article. But the main thing to know is that there is a distinct
difference in what a trademark is, what copyright means, and what one
does with a patent.

Trademark rights act to protect a word or logo as being "the" source
for goods/services. E.g. Nike. The instant anyone says that word, we
all think of running shoes and well, Michael Jordan. This is the true
definition of a trademark. Now here is the interesting thing. You don't
need to file for trademark registration to have common law trademark
rights, but let's put it this way - if you don’t file and someone
infringes on those rights, you'd have a tough time enforcing them. So,
it's best to be safe and not sorry, and file with the US Patent and
Trademark Office.

Other things that registering will do for you is provide the
"presumption" you're the trademark's rightful owner and gives you
statutory damages against someone using your mark in bad faith. Once
your "mark" is registered, you need to remember to always keep
protecting it to keep your trademark rights.

The Copyright Conundrum

The easiest way to explain copyright is to say that if you create
something and it falls under the definition of being a creative work,
it's up to you who makes copies and how many copies. Of course, there
are exceptions, and knowing what those exceptions are happens to be
important.

At this point, it's usually smart to contact a lawyer well versed in
this area, as this type of law has the potential to be extremely
complex. By the way, you may sell or even license this copyright, or if
you have done work for someone else, then they buy this right in
advance.

The major difficulty is defining what constitutes a creative work.
Legally, it has to exist in some tangible form – on paper, a disk or
even written in stone. However, what it's written on isn't what makes
it creative. To be creative, it can't be just straight factual data;
that is where an easily understandable explanation usually ends, as
there honestly is even an element of creativity to coding in computer
language.

Anything you do that is classified as creative writing, creative
editing, etc., is copyrighted. So the distinction is this: the facts
can't be copyrighted, but a very clever and creative organization of
those facts may be. This is referred to as compilation copyright. In
short, this area may make your head spin, so speak to a copyright
lawyer who has their head on straight and can outline what you need to
know.

Deborah Barron is a Sacramento business lawyer, Sacramento employment lawyer, and Sacramento winery lawyer in California. To learn more, visit Lawbarron.com.