There are different types of protections for intellectual property. If you are not familiar with the options, it can become confusing to differentiate among them. However, there are distinct differences among the various forms of protection. Two common types of intellectual property are trademarks and copyrights.

Traditional trademarks provide protection for words and/or symbols that serve to identify the source of the branded words. A trademark allows consumers to know that a product comes from a single source.

A copyright, on the other hand, is protection for the author of an original work of authorship that has been fixed in a tangible medium of expression. Such works might include books, movies, software programs or plays. Having a registered copyright allows you to prevent someone else from copying, performing, or distributing, among other things, the copyrighted work.

Variety Stores, Inc. v. Wal-Mart Stores, Inc.

In a recent case, Walmart was ordered to pay Variety Stores, Inc. $95.5 Million for infringing on use of its mark “Backyard.” At the core of the dispute, Walmart’s use of the word Backyard in advertising its grills was determined by a jury to potentially confuse consumers into thinking that Walmart’s products were actually products of the Variety Stores, Inc. Variety offers products advertised, for example, under the marks “Backyard BBQ” and “The Backyard,” in connection with backyard equipment and gardening tools.

The case whose verdict was rendered in February of 2019 began in April of 2014, demonstrating how legal battles can be drawn out over trademarks and the importance of properly protecting your trademarks.

Should I register my mark and work to be protected?

While common law trademark rights exist upon use of the mark in commerce without registration, registration of a trademark provides very important procedural and substantive advantage over unregistered marks. Likewise, copyright protection exists the moment a work is fixed in a tangible medium of expression (i.e. on paper, on disk, etc.). That said, in order to enforce your copyrighted work against infringers, you must first‎ obtain a registration.

How long do these protections last?

Trademark rights will not expire as long as you continue to use the mark. When using a trademark, you should use a symbol to denote that the mark is a trademark. If you have registered the mark, then use the capital R in a circle symbol. If you have not registered the mark, then just use TM.

A copyright will expire, but the protection lasts a long time. You generally have protection for your whole lifetime plus 70 years. For some works, such as works made for hire, the protection lasts the shortest of 95 years from the publication date or 120 years after the creation date.