Many people assume that copyright and trade marks are the same thing or protect the same things, but the truth is that these two elements of intellectual property (IP) are fundamentally different explains trade mark expert Jacqui Pryor.

Occasionally they may overlap (for example, in an artistic logo, which can attract copyright rights but also be registered as trade marks). They each serve different purposes and they cover distinct areas of creative works and branding, so when it comes to navigating the complex IP landscape, it’s important to understand which type of protection applies to your assets.

The basics of trade marks vs copyright

In this article, we unpack the differences between a trade mark and copyright in terms of their purpose, scope, registration and validity as well as discuss infringements and the enforcement of rights.  We’ll also offer some recommendations as to how to manage your IP protection strategy optimally in order to maximise the value of your creative works, your brands and other IP assets.

Let’s first look at the definition of a trade mark and copyright.

What is a trade mark?

A trade mark is a ‘sign’ – such as a symbol, logo, picture, phrase, word, letter, colour, sound, smell, movement, aspect of packaging or any combination of these – that serves to distinguish one trader’s products or service from the similar activities of other traders.

A trade mark that has been registered will generally have much stronger legal protections than an unregistered one. Trade mark registration essentially records the person’s or company’s ownership of that ‘sign’ in connection with the nominated goods or services.

What is copyright?

Copyright is a type of intellectual property that protects original works of authorship.  It gives exclusive rights to the author of an original work.

The   explains copyright as such:

‘It is a type of property that is founded on a person’s creative skill and labour.  Copyright is not a tangible thing. Copyright protects the original forms or way an idea or information is expressed, not the idea or information itself. The most common forms of copyright are writing, visual images, music and moving images.

Copyright provides an owner of a material with exclusive economic rights to do certain acts with that material. These rights include the right to copy and the right to communicate the material to the public.  Copyright also provides authors and performers with non-economic rights, known as moral rights. Moral rights recognised in Australia are the right of integrity, the right of attribution and the right against false attribution.’

Have a read through this article from our Jacqui Pryor, founder and lead trade marks attorney at MMW Trademark Services for an expert’s view on Australian Copyright Basics.

The differences between copyright and trade marks

The simplest way to break down the differences between these two forms of intellectual property is by looking at their:

• Purpose
• Scope
• Ownership and Registration
• Duration/validity

Purpose of a trade mark vs copyright

The purpose of a trade mark is to distinguish an original product or service from others in the marketplace and to protect a brand’s unique identity.

The purpose of copyright is to protect original works of authorship.

Scope of a trade mark vs copyright

A trade mark is any ‘sign’ that is used to distinguish the goods or services of one trader from another and can be anything from a word, name or phrase to a shape, image, sound, aspect of packaging, hashtags, colour or even a smell (or a combination of any of these).  A registered trademark is tradeable property and gives the owner exclusive rights to the use of that mark and the right to take legal action against anyone infringing upon it.  (This article on what can and can’t be registered as a trade mark is a useful resource).

Unlike a trade mark, copyright protection in Australia is free and automatic as soon as an original idea is expressed in tangible form.  Examples include an article, a book, a piece of music, an artistic work, a sculpture, an architectural design, a piece of software or a film and the scope of protection is for the articulated idea, not the idea itself.

Registering a trade mark vs registering copyright

It’s clear to see that knowledge, skill, time and often resources are required in order to navigate the intellectual property landscape successfully.

While an unregistered trade mark may still have rights, the best way to guarantee exclusive ownership and watertight legal protections for a mark with regards to a particular category of goods or services, is to register it with IP Australia. Trade mark ownership is created, in Australia, by either being the first ‘legal person’ to use that trade mark for certain goods or services, or, being the first to file an application seeking registration – whichever occurs first. The registration is a way of recording ownership rather than creating ownership. Without registering your trade marks you may be limited in preventing others from using the same or confusingly similar brands in the marketplace.

With regards to copyright, there is no registration system under Australian law.  The original creator is deemed the owner of that copyright – unless an exemption applies. For example, a graphic designer may automatically retain copyright in a work/logo they produce for a client unless agreed otherwise.

Duration of a registered trade mark vs copyright

A registered trade mark is valid for an initial period of 10 years.  It can be renewed for further 10-year periods indefinitely (for a fee).   For more details, have a read through this article on How Long Does a Trade Mark Last.

Copyright lasts for different periods depending on a number of factors including the type of material, when it was created, when the creator died and when and where the material was published.   Copyright generally lasts for 70 years after the death of the creator or after the first year of publication, depending on the type of material and/or when it was first published.

What to do if your rights have been infringed?

The most important thing to do if you have any suspicion about potential infringements with regard to both copyright and trade marks is to consult an expert.  IP and trade mark law are extremely complex fields and professional guidance will serve you well.

In respect of a registered trade mark, infringement occurs when a trader uses that same or deceptively similar mark in relation to goods or services that were covered by the registration without permission from the registered owner, where confusion is likely to occur.

Infringement can be deliberate or inadvertent, but in both instances, it is best to address the situation through a considered approach in order to achieve optimum outcomes.

With regards to copyright, infringement occurs if someone copies the original work (or a substantial part of it) and performs an act (such as reproducing it, or communicating it to the public) without the permission of the copyright owner. Coincidental similarity does not infringe copyright. However, a coincidentally similar name or logo could infringe a registered trade mark.

In respect of copyright, it’s important to understand that different uses of content are treated in different ways. For example, some uses require permission from the copyright owner, some uses don’t require permission but do require fair payment whilst others don’t require permission or payment (eg when material is used for research purposes or news reporting).  Again, this is a complex field and the help of an IP expert is recommended in the event of a suspected infringement.

Copyright and Trade Marks in Logos

Logos often attract copyright automatically as artistic works, so, the designer of that work may be deemed the owner by default. Further, use of ‘DIY’ design platforms may result in creating a logo that is not allowed to be registered as a trade mark. A logo, however, may (subject to any associated terms and conditions of the designer or platform) also be registered as a trade mark as it fulfils the definition of being a ‘sign’ used to distinguish the goods/services of one trader from others. Where viable, registration as a trade mark may be preferred as enforcement can be easier given that copyright infringements requires the work to be an actual copy of the original rather than something that is simply confusingly similar.

Key takeaways on navigating the world of intellectual property

Understanding the difference between trade marks and copyright can help you to better protect your creative works or your brand identity and  can be a key aspect of your business success.

The world of IP is dynamic and multifaceted and can be fraught with pitfalls for the unwary and the unwitting.  Engaging the help of a knowledgeable and experienced trade marks attorney or IP lawyer to help devise and manage your IP strategy will help you maximise the value of your assets and enforce your rights.

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