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tejas60

difference between trademark and copyright

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so, If I want to us a slogan AND a logo/visual, what do I need. and if I have a company name that's the same as the slogan, do I need either?

plus, how do I find out if that slogan and logo are already in use?

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Posted (edited)

Contrary to popular belief, trademarks mostly consist of words.  In the law, if there are words attached to your logo, they "dominate" and are the basis for comparison for similarity and thus infringement.  Logos mostly get ignored unless it is a really famous mark like say the Polo horseman. A logo can be part of a trademark, but because the law only pays attention to the words, if there are any, it is unwise to consider a logo to be part of your word trademark.

So, you are looking for a trademark.  

You already have it if you are using it.  You have a "common law trademark" that is equally as enforceable as a registered trademark.  There may be proof problems if you took it to court, though, and a registration smooths those out and give you a clear claim to the mark.

You may register it at the federal level if it is in use in commerce that may be regulated by Congress, ie "interstate commerce." Which means, if you apply the mark to goods, you sell goods bearing the mark between states.  Or, if it is services, you adverise the services in more than one state and are ready, willing and able to perform services in another state, so having a website that uses the mark will usually do if you aren't too local in nature.

The only thing that will prevent you from obtaining a federal registration is a confusingly similar prior registration.  You can search registrations here http://tmsearch.uspto.gov/bin/gate.exe?f=tess&state=4804:o9e05g.1.1.

But because common law trademarks exist, it behooves you to know if there are other unregistered users, also.  So a google search is a good idea.  If there are too many unregistered users, or a big one or two, that can be a bad sign.  A prior unregistered user can always sue you for infringement and take away your registration.

Edited by TwiceHorn

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Posted (edited)

If you are really in love with your logo, it is most likely an original work of art in which you can register a copyright.  But you have to secure an assignment of ownership from the artist, which you probably should on general principles.

Doing both would give you both barrels against infringers.

While enough words to comprise a book, or article, or story, or song may be copyrighted as original works of art, short phrases or slogans, as in the case of most trademarks, may not.

Hemingway's apocryphal six-word short story would test that notion, though (For Sale. Baby shoes, never worn.).

Edited by TwiceHorn

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Posted (edited)

Also note that trademarks exist in the context of the goods or services with which they are used.

Exxon only owns Exxon in connection with oil and gas production and sales and related goods and services.  Kodak only for cameras, film, and such.

In some cases, a mark can be sufficiently famous that its owner may win a lawsuit against someone using something similar on totally unrelated goods.  Exxon and Kodak might be able to get away with that.  Exxon once sued Oxxford, the suitmaker, because of the double xxs and the way they're arranged in the Exxon and Oxxford wordlogos.  Exxon lost.

Edited by TwiceHorn

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And FWIW, copyrights are granted to writers automatically, I think the moment they create the work. I think. Say you wrote something, and you can prove you wrote it, somebody can't steal it and publish it as theirs. They can, but you can sue them. Nothing needs to be applied for. There might be some stipulation that it be made public in some manner. You can't copyright a title. You can trademark it, but there are some technical glitches and it costs money. That's why you see two movies with the same name occasionally. I've read that Lucasfilm will sue a writer who tries to use the term "droid" in his novel.

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8 minutes ago, Irish Wrist Watch said:

And FWIW, copyrights are granted to writers automatically, I think the moment they create the work. I think. Say you wrote something, and you can prove you wrote it, somebody can't steal it and publish it as theirs. They can, but you can sue them. Nothing needs to be applied for. There might be some stipulation that it be made public in some manner. You can't copyright a title. You can trademark it, but there are some technical glitches and it costs money. That's why you see two movies with the same name occasionally. I've read that Lucasfilm will sue a writer who tries to use the term "droid" in his novel.

This is true, and not just for writers.  Any copyrightable material (art, music, writing) is copyrighted as soon as it is "fixed in a tangible medium."

One part of your post is incorrect, though.  You cannot sue in the United States without first registering the copyright.

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On 5/12/2020 at 4:51 PM, TwiceHorn said:

This is true, and not just for writers.  Any copyrightable material (art, music, writing) is copyrighted as soon as it is "fixed in a tangible medium."

One part of your post is incorrect, though.  You cannot sue in the United States without first registering the copyright.

You own the copyright automatically. Say someone tries to steal your work, can you "register" it, then sue? What exactly does registration entail?

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2 minutes ago, Irish Wrist Watch said:

You own the copyright automatically. Say someone tries to steal your work, can you "register" it, then sue? What exactly does registration entail?

You can, but you lose the ability to collect statutory damages and attorneys fees.  Statutory damages aren't worth much, but attorneys fees can be, if your infringer is solvent.

Used to be filling out and mailing in a one-page paper form with $35.  But now it's all online and actually a bit more of a pain in the ass.  Also, some of the blanks you have to fill in are a bit counterintutive. www.copyright.gov

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Posted (edited)

I have a neat little book that summarizes copyright/trademark law, but it's about 25 years old.   I used it when I registered a copyright on a photo I took so I could sue my first ex for infringement during our divorce.

Edited by NeverMarryAStripper

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