Trademark VS copyright, what is the difference? What makes one more powerful than the other? I find myself asking these questions after the book world was shaken up so strongly when one author managed to bring her trademark in front of the supreme court to protect what she calls her brand. Here’s a brief overview to better understand the situation [note that names have been removed to protect the parties involved]:
In March 2018, a romance author, who had been working since 2016 on her brand, applied with the Trademark offices of the United States for three approvals – one for her series name, one for a series description and the third for the stylized name of said series description. In May 2018, the book community was up in arms when this author sent cease and desist letters to various authors stating that they were in violation of the trademark [of the series description] and as such, have to either change the name of their title, change their book covers, or withdraw their books from Amazon in a timely matter or risk further legal actions. From these actions, the RWA (the Romance Writers Association), authors and retired lawyers (who are also authors), have banded together to have the trademark overturned under the grounds that a specific, generic word cannot be trademarked to a specific individual, especially considering that this word had been used by many other authors long before this person decided to keep it for themselves.
Now, here is where the confusion can start setting in: what gives a trademark a more strong legal foothold compared to copyrighted information/words? What is the difference between both? What are the legal repercussions if an individual is found guilty of copyright or trademark infringement?
What is a trademark?
A trademark is a sign, a design or a phrase (expression) that will enable to identify a specific product or service from a provider that can be owned by either an particular individual, a company or a legal entity1. This trademark will facilitate the recognition of the brand of the trademark applicant2 and can be found within three different categories:
TM: The letters T and M are superscripted and is linked to an unregistered trademark, often used to promote or brand specific goods.
SM: The letter S and M are superscripted and is linked to an unregistered service trademark, often used to promote or brand specific services.
®: The letter R surrounded by a circle represents a registered trademark1.
What is copyright?
Copyright is the ownership of an item that you create, whether they be literary, artistic, dramatic or musical. These rights gives the user the ability to produce, reproduce, display or publish their final products in any way that they see fit3,4.
What are the legal repercussions of a trademark infringement?
Consequences for illegally using a trademark for your own personal gain will vary according to the court rulings, as they are and can only be determined through a lawsuit. Some of these consequences include monetary damages, attorney’s fees as well as be the recipient of cease and desist letters or an injunction7, 8.
What are the legal repercussions of a copyright infringement?
When it comes to copyright infringement, the consequences can be more severe including (but not necessarily limited to) criminal fines, prison time, financial restitution attorney and court fees, as well as be the recipient of injunctions5, 6.
While both protect the user from unlawful usage, copyrights is specifically for original creations in the literary, artistry, dramatic or musical sectors, and trademarks are linked to existing or new images, words or expressions that needs to be linked to a specific good or service from a company. Legally, both are binding and allow the user the opportunity to protect their creations and watch them grow, but what makes a brand truly successful? It’s watching it grow right before your eyes, seeing others speak of it in positive tones. Know your rights and especially, know the difference between copyright rights and trademark rights as they are different from one another.
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