Trademark vs. Copyright:
What’s the Difference?
2024© Stephen Replin
I am always eager to discuss the differences between trademarks and copyrights and how each plays into a strategy for creating value early in a business’s growth and development.
It’s always interesting to hear consumers’ responses when I ask them if they would buy a car that looked like a Mercedes Benz in all respects, both inside and out, cost the same, but didn’t have the Mercedes logo on it anywhere. But what if it had a Buick insignia on the front and rear instead? Most people stop and have to think about that one. After all, when people see the Mercedes logo, they associate it with quality, a sterling reputation, prestige, and a higher cost.
When most people think about a Buick, and I’m certainly not saying in any way that Buick is anything but a first-quality automobile, most people don’t think of the high cost, a car with a sterling reputation, nor does this brand proposition attempt to make a statement about prestige, or high quality. Ask yourself what you would think in this case.
This simple example leveled the playing field for perception and branding.
I’m hopeful you also see the correlation between branding, reputation, and valuation. If and when you are ready to sell or merge your business, one of the most potent creators (or limitations) of value is your company’s position in the marketplace. It is easy to see that where your brand is distinctive, is offered at premium pricing, gets continual 5-star reviews and is always on the top of the suggested sources of quality products, you have reached a level amongst brands that most company owners only dream about.
Can you imagine the difference in valuation for the Ralph Lauren “Polo” brand if the company were to be sold without the ability to use the trademark versus with the trademark? Without the brand, the company would fall under the valuation formulas of most clothing brands. And this valuation would be high for this company. With the brand, however, the valuation would be substantially higher. And, probably, with the addition of many zeros to the ultimate price because of the strength of the trademark.
If you follow the logic that describes your brand as your most valuable business asset in most cases, it deserves the highest level of protection possible. It would be like having an original Van Gogh painting hanging over your fireplace with only a homeowners insurance policy in place that covered artwork as a miscellaneous add-on and nothing else. You must protect this highly valued asset(s) legally, vigorously, and globally, if appropriate, with everything you’ve got.
This brings us to the discussion of the differences between trademarks and copyrights.

Let’s talk trademarks now.
The legal definition of a trademark is “a symbol, word, phrase, design, or a combination of these elements that distinguishes the source of goods or services from those of others.”
I would urge you to reread this definition a few times until you start to understand the ramifications of trademarks. They are identifiers of brands and product sources. The auto insignia with the star and the logo’s overall look allows you to identify this symbol as that of the Mercedes-Benz company instantly. The assumption that you and millions of others logically make is that the automobile with this logo on it is a genuine Mercedes product that came in some way from a factory in Germany manufactured with the same overall high quality for which Mercedes is known. The trademark is a brand identifier, allowing consumers to recognize and trust a particular source, the Mercedes factory.
Trademarks can include logos, brand names, slogans, and even distinctive packaging.
Looking around you, you may see dozens of trademarks or more. How about the name “Coca-Cola” on drink products? Yes, the name “Coca-Cola” is a trademark. It is a brand identifier that instantly gives its customers worldwide information, telling them that the drink with this logo (its trademark) was made by the same company known for its quality everywhere. The Coke you order in New Delhi, India, will taste the same as the Coke you order in San Diego, and it’s that strong branding and consistency of quality that is a part of the company’s underlying principle that ensures you will be correct in every case.
Other trademarks with similar traits include the Nike Swoosh logo and the McDonalds Golden Arches.
That’s why when I asked you to envision a Mercedes in all respects, except for the insignias on the front and rear of the car, which are now replaced with those of Buick, you had to stop and think for a moment. Would you buy such a car?
From Mercedes to Buick, there is nothing similar about the two brands other than the basics, such as four wheels, seats, doors, etc. (I would also suggest that you think of a Buick with Mercedes logos instead of the Buick logos.)
It stops you immediately, doesn’t it? But wait, you say. The car is a Mercedes, but what do the Buick logos mean when applied to the vehicle in lieu of the Mercedes logos? Is this a signal of the quality, the pricing, the luxury, the prestige, the resale ability of each, and what else?
What if you saw a building with golden arches, but the sign outside said Taco Bell? That would be another showstopper.
Is this confusion ever a good thing for a brand owner? The simple answer is no; it never is. Establishing a solid and well-known brand is expensive, time-consuming, and takes continual work. Avoiding trademarks that create confusion in the marketplace is one of the basic principles of the entire trademark process and law.

OK, it’s time to talk copyrights.
Copyrights are very different from legal creations (e.g., trademarks) representing a brand. Copyrights protect content in the form of original works of authorship, including literary, musical, and artistic creations. They’re most commonly seen in works in public distribution, such as books, films, news articles, and even photographs.
Specific designs are also eligible for copyright protection. First and most importantly, the protection is extended to original works, not to copies, reproductions, or designs based on someone else’s work.
Secondly, the creation must show a modicum of creativity and cannot be a copy of someone else’s work.
And thirdly, there is no way to protect ideas. The common misperception is that you can write an idea and register the writing, which automatically registers the idea. Nothing could be further from the truth. All you are registering is the writing and not the idea. That would be like painting a rose, registering the painting, and thinking that you also own the rights to the rose.
Additionally, to gain the full protection offered by the law, you must register the copyright with the US Copyright Office in Washington, D. C. There is a small fee. Still, the protection offered by registering makes this one of the biggest bargains our government provides.
While there are two other forms of intellectual property protection (trade secrets and patents), the discussion of these is outside the scope of this article.

There are significant distinctions between Copyrights and Trademarks.
As we have seen, a trademark quickly allows consumers to identify the source of products, be they goods or services.
Preventing confusion in the marketplace is one of the primary purposes of the trademark system worldwide. If appropriately registered, a trademark will protect and enhance the value inherent in the mark.
A copyright protects creators of intellectual property by giving these people virtually complete control of all ways the original work can be monetized and otherwise utilized. These include control over the sale, distribution
Once you have obtained trademark status (either via common law or by registration), the protection offered will continue as long as the marks are in use and the trademark owner complies with the law requiring renewals of each mark.
By contrast, the protection offered by registration with the US Copyright Office currently lasts for the author’s (if an individual) lifetime plus an additional 70 years. If the work is created by a company, the term of protection is generally 95 years from the date of publication or 120 years from creation, whichever is shorter.
The term of copyright is always subject to legislative change; however, typically, the protection is lengthened and not shortened.
A trademark can be created and established by mere use over time. The registration process, however, will allow nationwide protection and certain presumptions that are difficult to obtain without registration.
It is true that you don’t have to file a registration with the US Copyright Office in order to have a valid and legal copyright if you meet the other requirements. But, it would be shortsighted to do so as registration with the office gives you the ability to sue infringers for statutory damages including your attorney’s fees, if you discover these violations of your registration.
Now that you know the basics of the distinctions between the two, as you review your inventory of intellectual property, you will understand how to protect each to the maximum extent possible. In the case of both varieties of intellectual property, you can most certainly register yourself by adhering to the forms.
I suggest that, especially in the area of trademarks, while not being self-serving, you consider using the services of an experienced attorney who has filed many trademarks. The field is complex and ever-changing, and a mistake in filing can result in your not having any protection whatsoever.
I have just given you the most basic possible description of the attributes of each of the two areas of intellectual property: the trademark and the copyright. If this discussion piques your interest, further research will reveal that within the overview of this introductory discussion are hundreds, if not more, sub-topics that will bear on the applicability of your basic knowledge.
The focus on what is and is not considered “fair use,” for example, can take treatises to attempt to explain. While it has protected what could be regarded as infringement in many cases, it has also failed to provide the same security in others, costing infringers millions of dollars.
You are now on the road to protecting your most valuable company assets.
Best regards,
Stephen Replin