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Trade marks and copyright are different forms of intellectual property (IP). These two forms of IP afford different protection. Both copyright and trade marks can assist your business to ensure that others don’t copy your work or your branding. This article will explain the differences between copyright and trade marks so you can determine which protection is appropriate for your business.

Trade Marks

A trade mark is a ‘sign’ and can be a:

  • name;
  • logo;
  • image;
  • colour;
  • sound; or
  • shape.

A trade mark is used to distinguish the goods or services of one business from those of another. To be successful, the sign must be distinctive. If not, IP Australia and other brands can object to the registration of the trade mark.

A trade mark will not be considered distinctive if it is a mere description of the products or services that you are offering.

Examples of well-known trade marks include the Nike tick and McDonald’s golden arches. However, if Nike tried to trade mark the name “Sport Shoes” or McDonald’s tried to trade mark “Burger Shop”, these names would be considered descriptive. Therefore, it would be impossible for these names to distinguish their brand from others and IP Australia would not accept them.

Registering a trade mark gives you 10 years of protection. Concerning the goods and services provided, trade mark protection provides you with the exclusive right to:

  • use;
  • sell; and
  • license the trade mark.

Although enforcing your IP rights can be difficult, having a registered trade mark provides you with an added layer of protection. Furthermore, it provides another avenue under which you can seek compensation.

How to Register

You can register for a trade mark by applying to IP Australia. The process of registering a trade mark is lengthy and takes at least six months in Australia.

When registering for a trade mark, you must identify the goods or services that will be provided under the mark. IP Australia provides a list of goods and services and requires that the applicant selects all classes that may be appropriate. Once you submit a trade mark application, it is harder to include additional classes. Therefore, it is important that your initial application includes all of the classes of goods and services that you would like to protect.

For example, if you are currently selling clothing but you have plans to expand into selling jewellery as well in the near future, you should consider registering under both classes.

Copyright

In Australia, copyright is an automatic right attached to original pieces of work. Copyright protects the expression of original ideas but not the ideas themselves. Copyright laws will only apply where the ideas have been materialised either tangibly or electronically.  The following works can be subject to copyright:

  • text (books, articles, journals);
  • artistic works;
  • sound recordings;
  • films; and
  • computer programs.

What Are Your Rights as the Owner of Copyright?

As the creator of an original work, you have the exclusive right to:

  • publish;
  • reproduce;
  • adapt; and
  • distribute the work to the public.

For works created since January 2005, copyright protection is generally afforded to the creator throughout their lifetime plus 70 years after their death.

Copyright focuses on protecting the creator from other people copying and reproducing their work. If you believe that someone is infringing upon your copyright, you may be entitled to take legal action. If you wish to use someone else’s copyrighted work, you must first seek permission from the creator.

Key Takeaways

Copyright and trade marks are different forms of IP, but they share the same goal of protecting a creator’s work. The three key differences between copyright and trademarks are that copyright:

  1. is afforded automatically, whereas a trade mark must be registered;
  2. protects literary or artistic works, whereas a trade mark can only protect a name, logo, shape, scent or smell;
  3. protection lasts throughout the creators lifetime and generally another 70 years after their death, whereas trade marks last 10 years.

If you are unsure about trade marks or copyright protection for your brand or creative works, get in touch with LegalVision’s IP lawyers on 1300 544 755 or fill out the form on the page.

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