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Do I need a Trademark or Copyright protection?

Both trademark and copyright belong to the same wing of legal regime that is intellectual property right. They offer different sets of rights and protection. Sometimes there is some amount of confusion between trademark & copyrights due to some similarities present between these two intellectual property laws but they serve different purposes. Let’s first understand what trademark and copyrights are and what protection do they offer.

What is a Trademark?

Trademark is a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others.  The function of trademark is identification of source, quality and act as an advertising symbol. A mark includes:  Brand (Example: BPL, McDonald etc), Device (refers to pictorial representation. Example: CoCa-Cola), Heading (Example: WINDOWS), Label (Example: CoCa-Cola), Signature, Name (Example: TATA, BIRLA etc), Numeral (Example: 555), Shape of goods, Letter (Example: IBM, GM, 3M etc), Word (Example: LIFEINTELECT,  INFOSYS, JAVA etc), packaging, combination of colours, sound (Example: Roar of Lion by MGM pictures), smell (Example: smell of fresh cut grass for the tennis balls) and any combination thereof.

Registration of Trademark is not mandatory. Rights acquired in a trademark are merely by using it. However, registration of trademark under the act crystallizes the rights of owner. Registration helps prevent piracy or duplication of the mark.

A trademark gets protection for a limited period (usually 10yrs) from the date of registration. However, it can be renewed forever as long as they are being used.

What is Copyright?

Copyright is a bundle of exclusive rights vested in the author/owner/creator to do or authorize others do certain acts in relation to their works. Copyrights cover much broader ground including artistic, literary, musical, dramatic works, cinematograph films, sound recordings, computer software and data bases. Copyrights protect the expression of the idea but not the idea itself. Its only when the expression is in some tangible form and original (and some countries like UK expects a spark of creativity to be present), it gets protected. For example, designs made with smoke will not get protected because it is not tangible or fixed. Copyright protects skill, labour and capital employed by the creator.

Copyrights allow fair use of copyrighted works for purposes such as criticism, comment, teaching, news reporting, scholarship, or research without permission of the right holder and it will not be considered as an act of infringement.

The term of protection for copyright (literary, dramatic, musical or artistic works) is lifetime of the author plus sixty years from the beginning of the calendar year next following the year in which the author dies. Where there are two or more authors then the protection is for sixty years from the date of death of the last author.

Do I need to register copyright?

Unlike patents or other form of intellectual property, copyright exists automatically upon the creation of the original work. There is no need to register copyright. However, there are certain advantages to do so. Registration creates a presumption of ownership and a presumption that copyright subsists in the work. It is also a deemed notice to the potential infringer.

Confusion and overlap of trademark and copyright

Sometimes there is an overlap between trademarks and copyright, where you may need more than one form of protection for a single product. Like a design may be protected by copyright in a sculpture or picture and the trademark is represented by the form itself.

Design- For example ‘Tom & Jerry’ design: copyrighted as a cartoon character and trademarked as an indication that it came from MGM (licensee). One would infringe the copyright by using ‘Tom & Jerry’ in his cartoons and would infringe the trademark by putting ‘Tom & Jerry’s picture on the package or product.

Books- Copyright protection is required for the manuscript of the books, thesis etc. and trademark protection is for titles or names.

Slogan- Copyright does not protect slogans, titles & names and these are protected by trademark.

Websites- Trademark protection is for the names, logos, slogans & titles and copyright protection is for content, information etc.

Logos and logo elements- They qualify for trademark protection. However, if they are artistic enough then qualify for copyright protection also.

Clothing- Design appear on the clothing (appear on the tag) is a trademark. But the larger design or artistic creations on the material is eligible for copyright protection.

Software- Trademark registration for brand names (Example: WINDOWS) and copyright for codes.

Advertisement- Text and graphics are covered by copyright but the slogan is protected by trademark.

Bands- Brand name is register as trademark but copyright registration is required for songs and lyrics associated with the brand.

So the bottom line is first determine what you need to protect. Are you trying to protect your business names, business slogan, logo or the way consumers identify your product- you need a trademark registration. If it’s for song, code, book, cartoon character, film, music etc. you need copyright protection.

 

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Categories: Brand, Copyright, Logo, Trademark

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