Intellectual Property: Trademark vs Copyright

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What Is a Copyright? Copyright is a system of protection provided to the authors of “original works of authorship” which includes musical, literary, artistic, dramatic, and some other intellectual works, which may be both published and unpublished. The copyright act of 1976 largely gives the owner of the copyright exclusive right to prepare derivative works, reproduce the copyrighted works, to distribute phonorecords or copies of the copyrighted work, to display the copyrighted work or perform the copyrighted work publicly. In short this is a right that helps protect the original work from being copied.

The copyright helps to protect the form of expression not the subject matter of the writing. For example, the description of a machine may be copyrighted, but this may only prevent people from copying the description; it would not prevent them from making and using the machine or writing their own description. Copyrights are registered by the Copyright Office of the Library of Congress.

What Is a Trademark? A trademark is a name, word, device, a short phrase or a symbol which is used in trade with goods to distinguish from others and also to indicate the source of the goods. Trademark rights are generally used to help prevent others from using a similar mark, but this does not prevent them from making or selling the same goods under a different mark. Trademarks used in foreign or interstate commerce are registered with the Patent and Trademark Office.

Trademark is particularly important for a new product or company. Most entrepreneur or Companies very often invest a great deal of money and time before the launching of a new company or product. The worst thing to happen during the launch of a new product or a new company is the fact that your trademark is too similar or worse same as another product or company. This may cause a lot of confusion in the mind of the consumer

Similarities Between Trademark & Copyright

1. Copyright and trademark help the owner with the right to disallow other people from using their work without consent.

2. Copyright and Trademark may exist at the same time in certain symbols, designs, symbols, colours, shapes or sounds.

3. They are protected by intricate laws that do not always merely apply to the working of the digital world.

4. No special notice or symbol needs to be put on the work or the mark by the owner to maintain or obtain their rights.

Difference Between Trademark & Copyright

1. Copyright is automatic whereas trademark requires distinctiveness and use (and possible registration if you are looking at any real protections).

2. A person with the copyright can protect their work from being copied by others under very broad rights where as a trademark holder may not be able to do so.

3. Tests for infringement are immensely different, infringement with trademark is more complex

4. Copyright law entails compulsory royalty payments and license whereas trademark laws do not have these kind of systems.

5. The duration a work is protected by a particular copyright law (for any work created after 2002) is usually another the life of the author plus 70 years. For a trademark, if it is a federally registered mark, and the mark remains unique, and required periodical filings are in place, then the duration could possibly be unending. Trademarks do not fall into a category of Public Domain after a certain time whereas copyright will.

6. Any Online infringement of a copyright can often be quickly handled under the Digital Millennium Copyright Act or (DMCA), whereas trademark infringement has no such equivalent non-judicial process.

7. While copyright laws are federal whereas Trademarks are protected by both state and federal
Trademark is particularly important for a new product or company. Most entrepreneur or Companies very often invest a great deal of money and time before the launching of a new company or product. The worst thing to happen during the launch of a new product or a new company is the fact that your trademark is too similar or worse same as another product or company. This may cause a lot of confusion in the mind of the consumer.

What Is Right for Your Business

It is important for every entrepreneur and business person to know the basic distinctions between copyright and trademark so that they are in a position to help protect their assets, respond to people claiming infringement, and if required pursue action for the infringement. Getting to understand the difference between both these may help in making decisions that involve social media strategies or product launch timelines. Through knowledge of copyright and trademark will unable business people to have an edge or an advantage over those who don’t thus help protect their valuable property suitably?

Copyright and Trademark are impalpable assets of any company which are there to protect intellectual property. It is registered with the name of the owner who created the asset. Copyright is used to safeguard the intellectual work and rights of the creator whereas Trademark is used to safeguard product or the mark of the company which is distinctive and which helps the consumer to recall the name of the product or the company selling the product. It prevents other people in the business from using the mark which could cause confusion in the mind of the consumer regarding the service or the product.

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Vakilsearch's resident expert on starting up, compliance and accounting, he holds a Masters in Accounting and an LLB.

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