My father is an attorney who has practiced law for more than forty years. Despite his broad legal knowledge and the fact that his only daughter is a trademark lawyer, he continuously interchanges the words "trademark" and "copyright." I notice this in others and it reminds me of my time practicing at a firm in a larger metropolitan area where fellow attorneys continuously interchanged "Kentucky" and "Tennessee" when referencing my home state.
Trademarks and copyrights are very different and are designed to incentivize different endeavors and protect different interests. Copyright protection encourages original creation by preventing copying by third-parties. The protection copyright law offers is directed to copyright holders (artists, authors, photographers). Trademarks are intended to help consumers distinguish between goods and services in the marketplace. The protection trademarks offer is directed to consumers.
That being said, there are some cases in which a trademark also qualifies for copyright protection. Put simply, these cases arise where a trademark includes sufficient "original" content to meet the requirements for protection set forth in the Copyright Act. How much "originality" also referred to as "creativity" is required? Not much. The Supreme Court has held that the requisite level of creativity is "extremely low." Even a "slight amount" of creative expression satisfies so long as the work possesses some creative spark, "no matter how crude, humble or obvious it might be."
Marks that include a design element that carries more than a modicum of creativity, for example, original artwork that would stand on its own (as opposed to mere stylization used to accent a word mark) are good candidates for copyright protection. Copyright protection for word marks is generally not available. The Compendium of U.S. Copyright Office Practices, Third Edition makes clear that "short phrases" such as names, titles, and slogans, are not copyrightable because they contain a de minimis amount of authorship.
Although not intended to protect commercial symbols, a successful copyright registration offers additional protection not automatically available to trademark owners including the two "big ones" – (1) statutory damage and (2) attorney's fees in the event of infringement.
So the next time you think about registering a trademark with the U.S. Patent and Trademark Office, you may ask yourself, does this mark also qualify for copyright protection?
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