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Trademark vs. Copyright

Create Time 2017-06-26 04:06    Views:272

          On a daily basis, we receive question from our clients such as “how do I copyright a name”, “how do I copyright a phrase”, or “how do I copyright my business name”. In a previous post, we briefly mentioned that a trademark is not the same thing as a copyright. In fact, they are often misused in many contexts, and are treated as if they are interchangeable. While both provide the owner with protection from unauthorized usage of their work, the differences between them still cause confusion among many. In this article, we will explore these differences in depth.

Copyrights

          Copyright protects original work – poetry, novels, movies, songs, computer software, and architecture. The work must be created on one’s own, without copying or modifying existing works. US copyright laws require the work to be fixed in a fixed medium. That is, the work can be observed and reproduced – such as words on a piece of paper or a digital photo.

          Copyright protection is automatically granted upon creation. This means that once you type some words of a book or begin drawing a picture, you have a copyright. It is not necessary to register a creative work to receive copyright protection. You may be wondering, why should I bother to register my copyright if my work is already protected when I made it?

          Registering a copyright gives you the power to sue others for infringement. If you wish to stop others from using your work, a copyright must be registered prior to the first occurrence of infringement, or within three months of when your work is first published. Registering your copyright enables you to seek attorney fees and statutory damages. As the author, you also have the exclusive right to use, distribute, or prepare derivative works.

Trademarks

          Trademarks protect brand names. They identify and distinguish the source of a good or service from others. This includes a combination of logos, designs, sounds, colors, words, and phrases. Others may not use your trademark or a similar variation of your trademark, as doing so causes confusion to customers.

          Trademark rights are not automatic. Unlike copyrights, trademark rights do not come from creation. In some jurisdictions, like the EU and China, you receive no protection until your trademark is registered. In other common law countries, such as US and Canada, registering your mark requires two elements – use and distinctiveness. That is, you must prove that you are currently using your mark, and that it stands out from your current and future competitors’ brands.

          Trademarks do not fall into the public domain after a certain time. As long as trademarks remain distinctive, owners can renew the mark indefinitely. On the other hand, copyrights only last for a set amount of time – in the US, it is the author’s life plus 70 years if the author is known, or the shorter of 120 years from creation and 95 years from publication.

Which one is right for me?

          Generally, you should register a copyright if you are trying to protect original work, and a trademark if you want to protect how your goods or services are identified. A copyright is best suited for works like books, pictures printed on T-shirts, drawings, and sculptures. However, if you want to protect a brand name, logo, or slogan, a trademark will do the job. In some cases, however, it is possible that your mark qualifies for both trademark and copyright protection – such as a highly detailed and artistic logo. As seen from our clients’ questions, many find it difficult making the distinction between a trademark and a copyright. If you find yourself unable to decide on which one to file for, a conversation with a Witmart agent may help. We will guide you through the decision-making process.


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