Trademark vs Copyright vs NDA: Protect Your Ideas, Brand, and Secrets

Trademark vs. Copyright vs. NDA: Protect Your Ideas, Brand, and Secrets

Key Takeaways: 

• Trademarks protect your brand identity. Without trademark protection, another business could use a nearly identical name and logo to steal your clients and good reputation.
• Copyright automatically protects original creative works. The moment you create a website or blog post, you own the copyrights to that work. Under copyright laws, others must not copy your content or republish your materials without permission.
• NDAs protect your confidential business information. NDAs come into play where the protections from trademark and copyright laws leave a gap. They ensure that your competitors don’t get access to your client lists, business strategies, and other confidential assets.

Imagine you’ve invested months into building your business and brand, only for a competitor to steal all your ideas and even your name. And the worst of it: without adequate intellectual property (IP) protection, they might not even be breaking the law.

Most business owners know they need legal protection but get lost in all the options, like trademark vs. copyright vs. NDA. Don’t let overwhelm and confusion cause you to skip legal safeguards or choose the wrong ones for your business.

Our guide explains when to use trademarks, copyrights, and NDAs to protect your business. You’ll also find help with legal templates for small businesses that can give you the IP business protection you need without hefty lawyer fees.

Quick Reference Guide- Trademark vs. Copyright vs. NDA

Protecting your business doesn’t need to be complicated. Before diving into how trademark vs. copyright vs. NDA can protect your intellectual property, here is a quick reference:

Trademarks: Protect the Face of Your Brand

A trademark protects your unique business name, logo, and other distinctive elements that help customers identify your business. Here are some examples of what a trademark can protect:

• Business names like McDonald’s or Apple
• Product names like iPhone or Big Mac
• Logos and designs, such as the Nike swoosh and the Starbucks mermaid
• Slogans and taglines: “Just Do It,” “I’m Lovin’ It”

When You Need Trademark Protection

If you own a business, it’s a given that you’ll need trademark protection. Here’s why:

• You have a distinct business and name. Without proper trademark protection, competitors could use almost identical names to capitalize on your client base and reputation.
• You have a distinctive brand logo or design. The best logo is worthless if anyone can copy it. Trademark protection ensures your visual identity stays yours.
• You use specific slogans in your marketing. Catchy slogans stick in customers’ minds. Trademarks prevent competitors from using your unique slogans to sell their products.

How to Register a Trademark

Getting trademark protection isn’t as complicated as it sounds, but it does require following a process that can take up to a year. Here’s what to do:

• Start with a trademark search. Before filing, search the United States Patent and Trademark Office (USPTO) database to ensure your preferred trademark isn’t already taken. This step is critical as it prevents costly rejections and legal disputes.
• File your application. Submit your application through the USPTO website, including the trademark you want to protect and the goods or services you’ll use it for. Filing fees start at $350 per class of goods or services.
• Wait for the examination. After you file your application, the USPTO will review it. This process typically takes several months as the agency checks for conflicts with existing trademarks.
• Publication and registration. If approved, your trademark will be published for opposition. If there are no objections within 30 days, you’ll receive registration.

Avoid These Trademark Mistakes

Trademark mistakes can sink your application. First, avoid using overly simple terms like “best web design” since they’re too generic to trademark. Choose a distinctive name for your business. Second, don’t wait too long to file your application. The longer you procrastinate, the more likely it is that someone else will file a similar mark.

Copyright: Guard Your Creative Ideas

Copyright kicks in automatically the moment you create something original, like a blog post or a website. Copyright protection lasts for the life of the author plus 70 years. For works made for hire, copyright can last up to 95 years from publication or 120 years from creation (whichever expires first). 

The good news: there are no forms to file and no fees to pay. That said, copyright only protects how you express an idea, but not the idea itself. For example, you can’t copyright a fitness app, but you can copyright your app’s appearance and the content you create (text, videos, graphics, etc.).

Here’s what copyright protects:

• Original marketing materials or website content
• Design graphics, logos, and product packaging
• Software or mobile applications
• Videos, podcasts, and audio content

Copyright Registration for Added Protection

You don’t need to register for basic “automatic” copyright protection. However, registering with the U.S. Copyright Office gives you additional protection, such as the ability to sue in federal court and claim up to $150,000 in statutory damages for copyright infringement per work. It also creates a public record of your copyright ownership. Registration costs range from $45 to $65.

Copyright vs. Trademark for Logos

This is where things can get confusing: a logo can be protected by copyright and trademark. While copyright protection for logos typically covers the artistic expression and design elements, trademark protection covers the brand identification part.

Let’s take Nike’s distinctive swoosh logo, which is protected by both copyright (covering the curved design) and trademark (protecting its use for Nike products). Competitors can’t copy the swoosh’s design, which would be a copyright violation, or use it to sell athletic gear, which would be a trademark infringement.

Nike is a giant, of course, but what about smaller businesses? Does dual protection even make sense for a small or medium-sized company? Here’s when it does:

• Your logo is highly original or custom-designed.
• Your logo is actively used in commerce now and not just reserved for future use
• You’re scaling your business or operating nationally

On the other hand, if your logo is simple, such as being text-based or using stock elements, registering a copyright may not offer much added value. Trademark protection alone may be more practical and enforceable.

NDAs: Keeping Your Business Secrets Safe

A Non-Disclosure Agreement (NDA) differs fundamentally from trademarks and copyrights. While those protect ownership, NDAs protect sensitive business information. An NDA is a contract that creates a legal obligation to keep your specific business information confidential. Here’s what NDAs typically to protect:

• Your business strategies and plans
• Customer lists and pricing information
• Your business’ proprietary processes
• Details regarding product research and development
• Your marketing strategies and campaigns

When Should You Use NDAs?

You need an NDA whenever you’re sharing information that could hurt your business if it gets into the hands of a competitor. This includes protecting you from potential employee indiscretion as well as situations that could arise with investors, vendors, business partners, and others who know your business intimately.

Types of NDAs

Most businesses need one of two basic NDA structures depending on who’s sharing confidential information:

• Unilateral (One-Way) NDA. This type of NDA is used when only one party shares information and the other party agrees to keep it secret. For example, unilateral NDAs are used when an employer shares internal processes with an employee.
• Mutual (Two-Way) NDA. A mutual NDA is beneficial when both parties share confidential information and agree to protect each other’s secrets. Such NDAs may be required when two businesses explore a joint venture.

How Much Does an NDA Cost?

The cost of an NDA can vary depending on whether you go down the DIY route or use an attorney’s services. DIY legal templates for businesses are the cheapest option, ranging from free templates to $100+ per document.

Attorney-drafted NDAs can be significantly more expensive, starting at several hundred dollars and up, depending on complexity and legal fees. For most small businesses, well-drafted templates offer strong protection without the high legal bill.

Key NDA Clauses – What’s Worth Including

An effective and legally sound NDA is only as strong as its content, so your agreement should include these four critical clauses, among others:

• Definition of Confidential Information. This clause outlines what information is considered confidential, such as client lists, pricing models, product designs, or marketing strategies.
• Duration Clause. For most businesses, NDAs are active between 1-5 years. That said, some agreements, such as those involving trade secrets, may require indefinite protection.
• Exclusions Clause. The exclusions clause identifies what’s not considered confidential, such as publicly available information.
• Remedies for Breach of NDA. This clause details the damages if the NDA is violated, which may include monetary damages and a court order to stop further disclosure.

What NDAs Can’t Protect

NDAs have limits. They can’t protect publicly available information or general skills someone learns on the job. They also can’t protect business ideas that aren’t documented. Most importantly, business owners can’t use an NDA to prevent someone from reporting illegal activity.

Trademark vs Copyright vs NDA—Which One Do You Need? (And When You Need All Three)

In a nutshell, most businesses need all three: trademark, copyright, and NDA. Ideally, you’d trademark your business name and logo, copyright your training materials and website content, and use NDAs with employees who handle client information. Each protection covers specific parts of your business, and they all work together to create a legal shield around your assets.

It’s essential to stay on top of IP protection, ideally from day one of your business. You’ll want to file your trademark application early and copyright your creative assets immediately. And don’t forget to draft an effective NDA and share it with anyone who sees sensitive business information.

Take Action: Your IP Checklist

Here is your IP protection action plan broken into manageable steps that you can tackle over the next few weeks:

1. Search the USPTO database for your business name
2. List all creative works you need to copyright
3. Identify what confidential information needs NDA protection
4. File trademark applications for essential brand elements

How SMVRT Legal Can Help

Are you ready to protect your business but not sure where to find help with documents? SMVRT Legal has you covered with affordable, legally valid templates customizable for your specific business and jurisdiction. Sign up today for instant access to NDA templates. The sooner you start, the sooner your vital business secrets will be safe.

Trademark vs. Copyright vs. NDA – FAQS

What if my business operates in multiple states?

Federal trademark and copyright protections apply nationwide once registered, so you don’t need separate filings for each state. NDAs are a different story. They must comply with the laws of the state(s) where your business operates. Consider having state-specific NDA versions if you have employees or partners in different jurisdictions.

Do I need a lawyer for trademark and copyright registration?

You can file basic applications yourself using the USPTO and Copyright Office websites. However, if you have a more complex business structure or valuable IP that needs comprehensive protection, hiring a lawyer is advisable.

How long does a trademark last?

A trademark can last forever, but you must keep up with a few important filings, such as a “Declaration of Use” between years 5 and 6, to show you’re still using it.

Between years 9 and 10, you must file a renewal application. After that, you’ll need to renew a trademark only once every 10 years. Don’t miss these deadlines, as your trademark will be canceled even if you’re still using it.

What happens if someone violates my IP rights?

If someone violates your IP rights, your best next step is to consult an attorney, as you may have legal grounds to stop the copyright or trademark infringement and seek damages.

Can I protect my business idea with just an NDA?

NDAs protect the sharing of information, but a business idea itself can’t be legally protected unless it’s written down. In other words, an NDA only protects tangible assets like a business plan or prototype. An NDA can prevent someone from sharing your idea with others, but it won’t actually stop them from independently developing something similar. Develop your idea into concrete form first, then use NDAs when discussing it with potential partners or investors.