PSU Insight

Protecting Your Intellectual Property

What's the Difference Between a Trademark and a Copyright?

Trademarks are another way of protecting intellectual property, and they're frequently used by pro speakers. In this session, you'll explore the two ways of trademarking something.

In the previous session, you saw that you patent a process (typically an invention). Now let’s look at another type of intellectual property — the name of something.

Let’s assume you want to assign a name to your specially-designed rubber chicken — the Chickenthumper. This is completely separate from the patent process; you can do one without the other. (We’re doing both in this example so you can compare and contrast them.) To assign (and protect) a name to your product, you need to trademark it.

Notice that you are trademarking the name, not the product itself. In other words, it’s the Chickenthumper™ training enhancer, not the Chickenthumper Training Enhancer™. (Putting it another way, a trademark is used as an adjective, not a noun.)

There are other considerations. Your brand name should always be capitalized. Also, you should not refer to your product solely by its brand name, as in “I highly recommend the Chickenthumper!” Doing so may invalidate your trademark. (It happens. Aspirin was once a brand name, but it was used without the product identifier “pain reliever” and so it was stripped of its trademark. Now anybody can use the term “aspirin”. That’s why companies are so careful to refer to Band-Aid™ adhesive bandages, Kool-Aid™ drink mix, GI Joe™ action figures, the Windows™ computer operating system, and so on.)

Unlike patents, trademarks can be incredibly easy to obtain. All you need to do is use the brand name in some published materials, and follow it with the “trademark” symbol (™). That’s all there is to it! There is a more complicated procedure, and somewhat like obtaining a patent, it involves applying to the government, specifically the trademark office. However, the procedure is less complicated than the patent process, and so many people opt to do it themselves.

But if you can get a trademark simply by using the symbol “TM” in some published materials, why should you bother getting a government-issued trademark? Simple. It can help if you ever get into a legal battle over a particular trademark. For example, suppose two different people use the same trademark. When they go to the courts to fight it out, the court will probably give more credence to the government-issued trademark than to a “common law” trademark.

So if your trademark is one that you really don’t want to lose, it might be a smart idea to register your trademark with the federal government. But if you aren’t sure yet, simply common-law trademarking your name will offer you some protection until you decide to apply to the government for a formal trademark.