Trademark Vs Copyright: When To Apply
Most people misunderstand these two terms when it comes to getting the legal protection for the intellectual properties of their businesses such as brand name, logo and slogan. In this article we are going to explain everything you wanted to know about protecting your intellectual assets of your business.
Brand name combined with a visual representation or a recognizable Logo reflects the product or service a company delivers and it also perfectly exhibits your company’s niche and personality. This should be a unique piece of art to distinguish your product or service from your competitors. Nevertheless, many intruders are keen in forging successful Brand names to divert consumers into their products. Companies who wanted radical success within one night and such cases often led to open discussions of intellectual assets, always imitating many successful companies.
As your brand name and logo depict your business, applying for a registration of copyright and Trademark are vital considerations in safeguarding the identity of your brand. However, having a vivid comprehension and getting familiar with the following will help you in presenting your Brand name universally.
What is WIPO?
The World Intellectual Property Organization is a global forum established for shielding intellectual property (IP) rights and this agency of the United Nations includes 192 member states in it. Under the supervision of WIPO, one can protect all the exclusive and moral rights relating to Trademark, Copyright, and Patents.
Let’s Define Trademark And Copyright
According to the USPTO,
A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors.
The word “trademark” can refer to both trademarks and service marks. A trademark is used for goods, while a service mark is used for services.
According to the WIPO, Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.
Brand Name Registering
It is not compulsory to register for copyright or trademark of your company name and logo. In the United States, you own copyright/trademark after your original work is published on a paper. However, registering them can support you in giving additional protection. It also helps to prevent someone else from using your brand name or logo for a similar type of business. Further, if you plan to expand your business globally, it will be a wise choice to register.
Brand name Copyrighted or Trademarked?
According to the above stated definitions, it is clear a brand name can be protected by the trademark law. But unfortunately, a trademark fails to epitomize the colors and design of a brand name or a logo and it also does not protect against illegal copying of creativity. This only justifies mere cases of company mark and in order to protect your original artistic work you should register your brand name under copyrights. This means if somebody is using the same artwork it cannot be termed as a Trademark infringement rather than a Copyright infringement.
As copyright law does not cover the words or slogans it is advisable to get both trademark and copyright for your intellectual properties.
Copyright protects original literary works that are in a physical medium. Companies can have copyrights for audio, video, reports, or any original piece of art. Another factor to consider is every work is copyrighted at the instant it is created. Registering it would assure its protection against copying as you hold the required documentation to attest your eligibility of ownership to it.
When a competitor attempts to imitate your original creation, similar to your brand name, which is intellectual property, you can sue them as well. When you have registered copyright, you get more control of how your intellectual assets work on branding the product. It also prevents other businesses or people from imitating your brand as you have gained your privilege by copyrighting it.
Eligibility of a Brand name for copyrights
This can be very puzzling! To apply for copyrights, you need the required level of originality and creativity to count it as copyrightable. Because of this, many simple brand names are not copyrightable. If your brand name is a bit more attractive and artistic, you can get it copyright registered.
The importance of filing a Copyright
- To claim ownership and save your original work from plagiarism.
- To control copying and circulation of your brand name.
- To gain the capability to legally protect your brand name copyright.
How can you identify whether a Brand name is copyrighted?
Before registering a Brand name, it is recommended to measure the availability of a Brand name copyright. You can gather information from,
- United States copyright office.
- The United States patent and trademark office.
- Trademark electronic search system
Registering Your Brand Name For Copyright
The registration process of a brand name varies from country to country. You should obtain a thorough understanding of the procedures in your country and globe to safeguard your intellectual property from infringement.
In the USA
- Browse the website of the United States Copyright Office.
- When you access the United States Copyright Office website, click on the Electronic registration system link (eCO Online Registration) and fill the form given.
- Then upload your logo and pay the mentioned registration fee.
There is no particular Copyright registration system in Australia, but one can get the guidance of the following.
In the UK
When to use the © symbol?
As copyrights are secured from the time the work is created, you are allowed to use the © symbol from the time the artwork is distributed. Whereas, the work is offered superior protection once it is registered with the Copyright Office of a country.
How long does copyright protection last?
A work is given validity till lasting of the author’s life, plus an additional 70 years following the author’s death. When considering joint works the ownership lasts for 70 years following the last surviving Author’s death. For works made for hire, and for the nameless and bogus works (except the author’s real identity is revealed in Copyright Office records), the extent of copyright will be 95 years from publication or 120 years from creation, whatsoever is shorter. If one applies for copyright through the Berne convention only 50 years will be granted.
The Benefits of Copyrighting can be,
- You are granted exclusive rights to the intellectual property you own.
- Your Brand name is protected against others who willingly imitate your brand name.
- The original idea and creativity of your brand name are secured.
When To Use A Copyright Notice
A copyright notice is a statement mentioned in your work to inform everyone that you own the rights by copyright law and permission must be granted if someone else needs to use it. Here are three main situations you need to use a copyright notice.
- To give notice to potential infringers
- Act as evidence of willful infringement
- To provide owner information for licensing requests
How can you sue a Copyright infringement?
Copyright infringement refers to illegal copying of a registered work without the permission of the copyright owner and here are some simple steps you can follow in such cases,
- First and foremost, collect evidence of the infringement as much as possible using the web and printed materials as you will have to produce documentation at the trial.
- Next, you should prove that the imitator had access to your brand name either from one of the following techniques.
- The imitator may have heard or seen your work.
- A person may have seen the imitator observing your artwork or exhibit that the suspected infringer could have found your work by browsing the Internet.
- Then mark the dates of infringement.
- Documenting the loss of income as a violation has cost you money you have to carefully document how far it has affected.
- Finally, hire an experienced lawyer to file the case.
Copyright Fair Use
Copyright fair use is a limitation on the owner’s rights. There are some circumstances that are fair to use copyrighted work. Let’s look into some,
- For criticism
- In comment
- For news reporting
- For teaching
- For scholarships
- For research
Real Examples Of Copyright Infringement
These kinds of cases are not rare to find throughout industrial history.
Grumpy cat Vs. Grumpy cat Coffee
The constantly angry kitty, whose real name is Tardar Sauce, had been awarded $710,000 in a copyright infringement case against a beverage company.
Gucci Vs. Guess
Gucci charged Guess for imitating a diamond-patterned G logo that was printed in the clothing of both brands. This combat led Gucci to win the case successfully in 2012. The court ordered Guess to pay $4.7 million in 2013. However, Guess won a countercharge in Italy. And the court approved Guess’s appeals to abolish three of Gucci’s registered trademarks.
Apple Corps vs Apple Inc.
The Beatles innovated the name “Apple” eight years before Steve Jobs introduced his Company Apple Inc. This dispute of suing lasted many years and ultimately, Steve Job’s Apple Inc. paid the Beatles’ Apple Corps a cash defrayal and vowed to stay away from the music business.
But when Apple Inc. introduced iTunes, the battle initiated again. Then the payment was given to the Beatles after Apple Inc. decided to purchase the Apple Corps’ trademark rights.
Jack Daniel’s vs Patrick Wensink
Now, this is a remarkable case that was resolved without a tussle of a Lawsuit. Patrick Wensink published a book, which had a dead ringer on its cover page and this was Jack Daniel’s famous branding trademark design.
The famed company, Jack Daniel’s, sent a letter to Wensink, recommending him on replacing his cover and as a mark of appreciation and generosity, the company even thought of contributing financially to design the new cover. Being extremely polite, Jack Daniel’s did not even ask for the book to be taken off the stores and this plea made Patrick Wensink expose the letter on his website, after which many positive praises were won by Jack Daniel’s.
To conclude, your Brand name is the backbone of your business, and this intellectual property represents your business reputation locally and internationally. Registering it as a Trademark can protect the brand name but, some limitations can be overcome by having Copyright.