You see them everywhere: ©, ™, and ®. You might know that they are copyright and trademark symbols. But what do they mean and when can you use them?
Let’s talk about the concepts underlying those symbols and the differences between them.
Copyright law protects “original works of authorship,” such as works of music, art, and literature — but not ideas and processes.1 A trademark is a word, name, symbol, device, or any combination thereof that identifies and distinguishes the source of goods.2 So, the latest hit songs and the books on the New York Times Best Seller list are protected by copyright, while the phrase the “New York Times,” the word “Nike” (in the context of sportswear), and the Nike swoosh logo are protected by trademark.
The © symbol identifies copyrighted works that are registered with the Copyright Office of the Library of Congress. You do not need to register your work to use the © symbol or to enjoy the basic protections of copyright law. Copyright protection attaches when you create the work.3 Use of the © symbol, in conjunction with the date of first publication and the copyright owner’s name, gives others notice that your work is protected by copyright, so those who had access to your work cannot make a claim of “innocent infringement.”4 However, registering your work with the Copyright Office of the Library of Congress still has its benefits. It opens you up to certain statutory remedies5 and, because you have a copy of your work on file with the Library of Congress,6 everyone is presumed to have notice that your work is copyrighted, not just those who see your use of the © symbol.
The ™ and ® symbols both refer to trademarks — the only difference is in whether you need to register the mark to use the symbol. You do not need to register the ™ mark to use it — you can just attach it to a mark you’re using. But you do need to register your mark with the United States Patent and Trademark Office in order to use the ® symbol. Trademark protection arises when you make “actual and continual use” of the mark in commerce.7
However, registering a trademark offers many benefits. Your mark will be presumed to be valid,8 you will have nation-wide protection of your mark,9 and others cannot make the claim that they were unaware of your mark. But keep in mind your trademark rights are limited to your category of goods or to other categories consumers would believe you might expand to.10 Also, an unregistered user of the mark who had been using your mark prior to your registration may still use the mark in the limited geographic area it had been operating in.11
For example, if you’ve registered your mark for use on your coffee shops, with locations in California and New York, consumers would see your move into the sale of coffee products as a natural expansion. If someone had been using your mark in Utah prior to your registration and use of the mark, that person may continue using that mark, but is limited to using it in Utah.
- Copyright protects “original works of authorship.”
- A trademark identifies and distinguishes the source of goods.
- The © symbol identifies copyrighted works, registered and unregistered.
- Copyright protection arises with the creation of the work, but there are still benefits to registering your copyright.
- The ™ and ® symbols refer to trademarks: the former to unregistered marks, the latter to registered marks.
- Trademark protection arises when you use the mark in commerce, but there are benefits to registering your mark.
- Registering your mark does not give you free reign over the mark. You are limited to your category of goods and services and other categories you might conceivable expand to (from the consumer perspective). Users who had been using your mark before you may use the mark, but their use is limited to the geographic area in which they’d been using the mark.
- 17 U.S.C.A. § 102 (West). ↩
- 15 U.S.C.A. § 1127 (West). ↩
- 17 U.S.C.A. § 302 (West). ↩
- The claim that they were unaware the work was protected. Id. 401-02. ↩
- Id. § 412. ↩
- Id. § 408. ↩
- Tally-Ho, Inc. v. Coast Cmty. Coll. Dist., 889 F.2d 1018, 1022 (11th Cir. 1989) (in determining whether the rights of a television producer, which had registered a mark under Florida’s trademark law, were superior to those of a community college district, which had not registered the mark and used it prior to the producer’s registration, the court looked to the common law to determine when trademark protection arises). ↩
- 15 U.S.C.A. § 1115 (West). ↩
- Id. § 1057. ↩
- Tally-Ho, 889 F.2d at 1027. ↩
- 15 U.S.C.A. § 1115 (West). ↩