Difference between Trademark and Copyright

Do you own a brand-named business? do you create unique assets and materials for your business? If so, you might have thought about protecting your intellectual property and wondered if trademarks could be the right protection for your business. When it comes to running a business, intellectual property and brand identity can be just as important as revenue. For example, if someone were to sell a product using your trademark and logo without your consent, how would you react? How will this affect your business? Fortunately, you can protect your business and take legal action against those who use your brand and intellectual property without your permission through copyrights and trademarks. Intellectual property includes both trademarks and copyright, which are intangible assets, similar to creations of the mind, such as inventions, literary and artistic works, design symbols, names, and images incorporated into commerce. Businesses can have intellectual property that can largely include any business ideas, along with the products and processes that result from those ideas. As a result, trademarks and copyrights, along with patents, are used to protect intellectual property rights in the United States of America. Copyrights and trademarks differ mainly in that, despite offering intellectual property protection, they protect different types of assets and require different registrations. In general, copyright protects literature and artistic materials, including books and videos, and is automatically assigned after creation. The most comprehensive protection for trademarks comes from registration with the government, which is necessary for items that contribute to the identity of a company. Let’s explore each of these protections in detail to better understand the differences.

What does a copyright protect?

Copyrights are intellectual property rights that protect original works and are automatically generated by the creation of those works. Copyrights protect dramatic, musical, literary and artistic works, including:

Songs
Movies
Art
Research
Novel
Poetry
Other forms of original writing
Computer software
Architecture
Different types of audio and video materials

As long as the original work is preserved in some tangible form when it’s created, it is protected under copyright. On the other hand, unrecorded speech can’t be protected under copyright since it isn’t tangible. Work that cannot be copyrighted includes:

Discoveries
Ideas
Principles
Listing of ingredients or content (although a recipe or instruction can be copyrighted)
Common properties like heights, weights and calendars cannot be copyrighted.

Furthermore, public domain works cannot be copyrighted again, including those whose copyright has expired, been forfeited, or been waived.

How to protect a trademark?

We briefly mentioned above that copyrights and trademarks protect different things, but another difference is how these intellectual properties are protected. In essence, copyright is generated automatically when a work is created, However, there are a number of precautions you can take to ensure potential infringers do not use your work without your consent. Here are some examples: Properly marking: You can make sure your work is properly marked, such as signed or with a watermark, and that there’s a clear evolutionary footprint from the work to your business. Use the copyright symbol: At a minimum, you can use the © symbol to denote a copyrighted work. Creative Commons: Creative Commons offers free copyright licences that allow you to mark your creative work with the freedoms you want it to carry. Poor man's copyright: This is the practice of sending your own work to yourself, thereby establishing that the material has been in one's possession for a particular period of time. However, there is no provision in copyright law for any such type of protection, and poor man's copyright is not a substitute for registration.

What does a Trademark protect?

A trademark, on the other hand, is an intellectual property right that protects words, phrases, or symbols that serve to distinguish one product from another. Therefore, a trademark protects items such as:

Brand names
Business names
Logos
Slogans

In short, a trademark is basically any mark that identifies a product or business. Here are some well-known examples of trademarks.

The Nike® logo with the swoosh is a combination of a word and a design that is a registered trademark.
The golden arches of McDonald’s® are an example of a design that is a registered trademark.

This being said, when it comes to trademarks, it's important to distinguish between a trademark and a service mark. Although the term "trademark" is typically used to encompass both trademarks and service marks, a service mark is specifically used to distinguish the services of one business from those provided by another.

How to protect a Trademark?

While trademark registration isn’t required, it is certainly one of the most effective methods of protecting your business’s logo, brand name, or slogan.

A trademark registration entails:

Provides prima facie evidence of ownership and validity; Provides statutory protection in India; Aids in discouraging others from using the trademark illegally; and allows a suit for infringement to be brought. A passing-off suit, on the other hand, can be filed in the case of an unregistered mark. Because passing off is a common law remedy, the plaintiff bears a higher burden of proof than in an infringement action.

Protection Against Infringement of Trade Mark:

According to Section 29 of the Trademark Act of 1999, the use of a trademark that is identical with, or deceptively similar to, a registered trademark by a person who is not the registered proprietor of the trademark or a registered user thereof constitutes trademark infringement, and the registered proprietor can take action or obtain relief in respect of trademark infringement. In a case, the Supreme Court ruled that if the two marks are identical, the infringement is proven; otherwise, the Court must compare the two marks, the degree of resemblance by phonetic, visual, or in the basic ides represented by the registered proprietor, if the essential features of the registered proprietor's mark are discovered to be used by another person, only the Court can rule on the matter. It is important to make sure what you are trademarking is not already in use before using these symbols. Just because something does not mean that it is not trademarked legally.

Bottom line

As a reminder, the differences can be summarised as: Original work is protected by copyright, while an item that identifies a business is protected by a trademark. Copyright is generated automatically upon the creation of original work, whereas a trademark is established through the common use of a mark in the course of business. Copyright expires after a set period of time, whereas a trademark doesn't expire provided the mark continues to be used. In conclusion, both of these intellectual property protections can be beneficial if they apply to your business. Therefore, if you have questions about your legal rights or how to register a trademark or copyright, it might be helpful to work with a business attorney or online legal service for advice and guidance. We, at IndiaFilings, offer this service at an affordable price with tremendous support. So, get in touch with us and we will be glad to assist you.

Trademark Registration

Trademark Objection