Trademark or Copyright? The Right IP For You

Trademark or Copyright? The Right IP For You

Trademarks and copyright both serve to protect intellectual property – but which type of IP is right for you and the assets you want to protect?

In this article, we discuss how trademarks and copyright compare and how to determine the best IP for your business needs.

What is a trademark?

A trademark can be be a logo, a slogan, a word, a domain name, a colour, a sound, a letter, a shape, a phrase, a design or a combination of any of these that works to distinguish your brand from others in the marketplace. Many will recognise trademarks as brand names or logos, but characteristics unique to a brand, such as colours and smells, are also eligible for trademarking depending on the application filed.

Once your trademark has been registered, you will gain full and legal ownership over your marks. This gives you the exclusive right to utilise and profit off your marks in the marketplace, and to also take legal action over third parties who attempt to use your marks without your consent.

You can use the ® symbol when your trademark has been registered. If your trademark is unregistered, the ™ symbol will be in use.

Tip: If you are finding it difficult to determine what to trademark, consider aspects of your business that represents your brand to consumers. Protecting what makes your brand unique will help you stand out from competitors, and it is essential to protect and build upon on what makes your business different from others.

What is a copyright?

A copyright protects original works of authorship. Copyright is most commonly utilised by creatives, such as creators, authors, designers and architects to protect original works of art.

Owners of copyrighted works will have the exclusive rights to control the reproduction of the work in any material form, communication of the work to the public, the performance or playing of the work to the public, distribution of the work to the public and commercial rental of the work to the public.

Should any of the above be performed by a third party without consent, the owner of the copyrighted work will be able to take legal action as it is a violation of their copyright protection.

What do trademarks protect?

There are four common types of trademarks as follows:

  1. Ordinary trademark – a word, design, or a combination of these used to identify and distinguish the goods or service of one person or organisation from others in the marketplace
  2. Service mark – a word, design, or a combination of these used to identify and distinguish the services of the provider from others in the marketplace
  3. Collective mark – a service mark used by members of a collective group to signify membership in the organisation
  4. Certification mark – a word, design, or a combination of these used to signify to consumers the goods or service have met particular standards

A trademark upon its registration will be protected for a term of 10 years and be renewed for a further period of 10 years.

What does copyright protect?

Art, cultural and technological works eligible for copyright protection include literary works, musical works, artistic works, film, sound recordings, broadcasts, derivative works and more. For example, copyright can protect poetry, novels, movies, songs, computer software, architectural drawings and more.

What can’t you copyright? You may not copyright an idea, procedure, any methods of operation or mathematical concepts.

Is my work eligible? Your work will not be eligible unless if sufficient effort has been expended to make the work original in character, and the work must be written down, recorded or otherwise reduced to material form.

The term of protection for copyrighted works varies. However, most works are protected during the life of the author and 50 years after their death.

What else should I take note of?

In the case of trademarks, you as a trademark owner will be able to take a third party to court should they utilise a mark that is not necessarily the same, but highly similar or confusingly similar to yours. On the other hand, this is not possible for copyright owners as copyright protection is limited to the exact work itself. Copyrights do not protect ideas, but the expression of the idea.

The term of protection for copyright is limited to a number of years after the passing of the author, but trademarks can be renewed at the discretion of the owner or as long as the mark is in use.

The primary difference between trademark and copyright comes down to the type of asset you would like to protect. Logo, brand name, design? Go with trademarks. Art and cultural works? Copyright is for you.

Still confused? Let us help you work it out. Get in touch with our IP professionals for a free consultation.

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