Creative people in myriad endeavors -- ranging broadly from business and art to literary expression and musical composition – are properly concerned with protecting their intellectual property.
Whether that is a song, a novel, a distinctive logo/slogan or other identifier that links back to its creator, its genesis and development owed to hard work and creative impulse. That sweat equity and justifiable pride in authorship merit protection from those who might seek to profit through infringing uses.
Copyrighted protection applies to original works of authorship commonly linked with literary property. That encompasses things like books, musical works, plays/movies and sound recordings. As noted in a recent article spotlighting intellectual property and its protection, “Copyrights protect art, not names, titles, or short phrases.”
Trademarks are also duly focused on protection and, like copyrights, apply to intellectual property that is sought to be legally identified with a certain source.
There is a material difference between a copyright and trademark, though, namely this: The former focuses chiefly upon a created work itself, with the latter being more centrally concerned with properly linking a select product or service with a certain individual or company.
Trademarks are construed less as works of authorship than they are as source identifiers. Think Nike’s swoosh logo, the iconic lettering for Coca-Cola, MGM’s lion roar or State Farm’s short “Like a Good Neighbor” jingle. Those identifiers are meant to immediately relate to a select good or service.
As such, the legal standard relevant to trademarks comes in the form of a “likelihood of confusion” test applied by courts.
To wit: Is a third party using a mark, logo or other identifying mark that is so similar to a protected trademark that it is causing confusion as to source in the mind of a reasonable consumer? If so, it is an infringing use.
Obviously, it makes great legal sense for any business to enjoin unfair competition by legally protecting to the maximum degree possible the marks, slogans and symbols that identify it.
We will delve into that a bit further in our next blog post from the perspective of a musician or other commercial artist.