Intellectual Property: Trademark vs Copyright

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intellectual property

Copyright and trademark are both types of intellectual property rights that help provide its creator rights over the use of her/his creation for a limited period of time. Businesspersons who are looking to register an intellectual property must know the differences between the two and then obtain the right registrations to protect it. In this article, we shall look at the differences between copyright and trademark in India.

What is a Copyright?

A copyright is a right given to the creators of literary, musical, dramatic and artistic works and the producers of cinematograph films and the sound recordings. A copyright doesn’t protect names or brands, slogans, short word combinations, short phrases, plots, methods or factual information. A copyright also doesn’t protect ideas or concepts. Hence, a copyright is mostly used to protect the creativity of people like writers, artists, dramatist, designers, musicians, architects and the producers of sound recordings, cinematograph films and the computer software.

What is a Trademark?

A trademark is a word or a visual symbol being used by any business to help people distinguish its goods or services from that of the other similar goods or services which may be originating from a different business gets protected. A trademark application must be filed to register a trademark by the applicant with the relevant Trademark Registrar in the format that has been prescribed. Trademarks are generally used to protect the brand names, business names, slogans and much more.

Difference between Copyright and Trademark

Both Copyright and Trademark have different and distinct uses. Their validity and the requirement for registration also vary as follows:
Copyright: A copyright is generally used to secure the literary, musical, dramatic, and the artistic works including the cinematograph films and the sound recordings. A software or a programme or tables and databases can all be registered as a ‘literary work’ under Copyright Act. A copyright is a legal right in the eyes of the law which gives an exclusive right to an individual who originally creates the work. Any individual with a copyright must use it in a judicious way as per the provisions of the copyright law. The people who are creative or who write an original piece of work receive a copyright. Writers, poets, painters protect their original piece of work with copyright. Nevertheless, to obtain the copyright for a software, the source code for the software must be submitted to the Copyright Office along with the application.

Trademark: Trademarks are generally used by individuals, commercial and non-commercial bodies to protect the brand names, business names, slogans and more. A concept or an idea or software cannot be trademarked. But, a unique name given to a concept or a software or can be trademarked. A lot of businesses use their trademark or the packaging of their products or on the product itself. This provides them with a protection against their goods, brand or mark from other people using it. The person who owns the trademark can pursue a legal action against any person for using his trademark.

Registrar

Copyright: The review and acceptance of a Copyright application is controlled by the Copyright Office, Department of Higher Education, and Ministry of Human Resource Development.
Trademark: The review and the acceptance of a trademark application is controlled by the Controller General of Patents, Designs and Trademarks, Ministry of Commerce and Industry.

Validity
Copyright: The broad rule is that a copyright lasts for 60 years. In case of an original literary, dramatic, artistic and musical works the 60-year period is counted from the year following the death of the author. In the case of a cinematograph films, photographs, sound recordings, posthumous publications, an anonymous and pseudonymous publications, the works of government and the works of international organisations, the 60-year period is counted from the date of the publication.
Trademark: Trademark registrations are valid for a period of 10 years from the date of application. This validity can be extended at the end of 10 years by filing a trademark renewal application.

Frequently Asked Questions

1. Does one copyright or trademark a logo?
A trademark is meant to protect a word, phrase, symbol or a design (or may be a combination of all these), that classifies and distinguishes the goods or services of one individual or company from those of the others. Few things, such as a complex logo, may be eligible for both a trademark and a copyright protection.

2. What is the difference between logo and trademark?
Trademarks include company names, slogans, logos and designs that are used to identify and distinguish a company’s goods in the business trade. The physical mark may be a word, a sign, symbol or a design that help to identify the trademark owner.

3. What is the difference between copyright and trademark under the legislation?
A copyright is protected by the Indian Copyright Act, 1957, while a trademark is protected by the Trademarks Act, 1999.

4. What is the importance of copyright and trademark?
A copyright is used to prevent others from using your creation without consent. A trademark is issued to help distinguish and differentiate your brand, mark or logo from others.

5. What are the area where copyright and trademark are applicable?
A copyright is applicable all over the world. It is applied to artistic and literary creations. A trademark is limited to only a certain area in its application. Typically, it is applied to goods and services. The area of limitation may be increased or decreased on the basis of the international or national usage.

6. Are copyrights and trademarks generally availed by the same kind of professions?
Copyright filing is for musicians, artists, novelist, graphic designers, etc. for the protection of their original and unique work. Trademark filing is used for an individual or business to protect their logos or symbols of various goods and services.

7. What kinds of protection do copyright and trademark offer?
A copyright protects against copying and is automatic. A trademark protects against the confusion and dilution. The protection is automatic for distinct marks.

8. Can a website be copyrighted?
The original composition that appears on a website may be protected by copyright. This includes the writings, photos, artwork and other forms of content protected by copyright. The procedures for registering contents of a website can be found in Circular 66, Copyright Registration for Online Works.

9. Can one copyright a domain name?
Copyright laws don’t extend to domain names. The Internet Corporation for Assigned Names and Numbers (ICANN) is a non-profit organization that has the responsibility for the domain name system management, administers assigning of domain names through the accredited registers.

10. How can I protect my recipe?
An ordinary listing of the ingredients may not be protected under the copyright law. Nonetheless, a recipe or formula is always accompanied by a significant literary expression in the form of an explanation or direction. A collection of recipes in a cookbook may be substance for copyright protection. In case, there are some secret ingredients to a recipe that one doesn’t wish to reveal, then, the recipe shouldn’t be submitted for registration as the applications and the deposit copies are public record.

11. Can one copyright the name of a band?
No, the names are not protected by the copyright law. Some names can be protected under the trademark law.

12. How can I protect my idea?
A copyright does not protect concepts, ideas, systems, or the methods of doing something. One may express his/her idea in writing or a drawing and then claim copyright for description, but one should be aware that the copyright will not protect the idea itself as revealed in the written or artistic work.

13. Does a work have to be published to be protected?
Publication is not essential for copyright protection.

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