Copyright vs Trademark: What’s the Difference? (2021 Update)
Trademark and copyright protection are both useful ways of protecting your business's intellectual property. Find out how they're different here.
Your business’s intellectual property (IP) is one of the most valuable assets you’ll have. When your brand becomes well-known and loved by your customers, your IP will be the first thing that will resonate with them. When it comes to intellectual property, you can protect it as a trademark or have it protected under copyright law. However, copyright and trademarks have a lot of differences. This is most notably because copyright protection can apply automatically while there are registration requirements for some trademark protections to apply. At the same time, trademarks and copyright apply to different types of intellectual property. Nevertheless, no matter how you intend to protect your intellectual property, you’ll want to do so early on. In this guide, we’ll discuss the differences between trademarks and copyright, so you’ll know how to protect your business’s assets.
What Is Copyright?
Copyright is a form of intellectual property protection. To understand how it differs from trademarks, it is important to first understand some basics. Specifically, we’ll look at what copyright protects and who owns it.
What Does Copyright Protect?
Copyright is a bundle of exclusive rights belonging to a person who creates works of expression or related matter. These works can include literary works, art, sound recordings, films, and even computer programs. These rights include copying, reproducing or communicating the work without the copyright owner’s permission. Copyright owners enforce these rights under the Copyright Act 1968 (Cth) (‘Copyright Act’). However, copyright only protects the original expression of ideas and not the actual ideas themselves. A good example of where you might have copyright material is on your website. If you have a blog or have made a video promoting your business, it will be protected by copyright. For more information on what copyright does and does not protect, check out our guide on ‘What Is Implied Copyright?: A Guide For Business Owners’.
Who Is The Copyright Owner?
In Australia, there are two types of copyright. First, copyright in literary, dramatic, musical or artistic works. The owner of copyright in these kinds of works is typically the person who actually made them. They are often referred to as the ‘author’ of the work. Second, copyright can exist in other subject matter, such as sound recordings, films, etc. The owner of copyright in these subject matters is likely to be the owner of the recording studio or the production company of the film. As a general rule, the first owner of copyright can decide to assign copyright or allow others to share, reuse or remix their material. If someone is copying your work, you can bring forth an action for infringement.
What Is A Trademark?
A trademark is also a form of intellectual property protection. However, it differs from copyright in terms of what it protects, and the relationship between ownership of the trademark and the owner’s rights.
What Do Trademarks Protect?
Trademarks are an effective way to promote your brand and protect your products and services. Generally, trademarks are signs that operate as a distinctive mark. They enable consumers to identify goods and services between one owner from other competitors. The term ‘sign’ is broad and includes letters, words, names, signatures, devices, brands, headings, labels, tickets, packaging, shapes, colours, sounds, and/or scents. Basically, anything which covers the surface of a product, such as the shape of a container, may operate as a trademark. Two iconic trademarks include the Cadbury shade of purple and Coca-Cola’s elaborate Spencerian script logo.
Who is The Trademark Owner?
The owner of a trademark is the person who uses it first. Additionally, registration can grant this person specific enforceable rights over the trademark under the Trade Marks Act 1995 (Cth) (‘Trade Marks Act’). The formal registration of a trademark gives the owner the exclusive right to use, sell and licence their trademark. With this registration, the unique features of your registered trademark will be protected throughout Australia for a period of 10 years. This protection can be renewed, in theory, on an ongoing basis forever. However, you can only register your trademark if it satisfies the following:
- If the “sign” is capable of distinguishing the goods or services of the owner from those of other traders; and
- If it meets other requirements for registration.
For more information on trademark registration, you can read our guide on ‘How To Register A Trademark’.
What Is The Difference?
Trademark and copyright protection are distinct forms of legal IP protection. This means that they follow different processes and the duration of protection will be different.
As mentioned above, you don’t have to register your copyright to enforce it under the Copyright Act. It is sufficient to prove you are the owner of the copyright to enforce it. On the other hand, this is not sufficient for trademarks. For your trademark to be enforceable under the Trade Marks Act, you must first register it. Therefore, if your business is launching a unique product or service with a form of branding, you should register a trademark. When applying for a trademark, you need to be careful which class you choose to register in. The class of your trademark should be the industry or category your business operates in. Applying for a trademark can be a time-consuming and complicated process, particularly if it is your first time. At Lawpath we make registering a trademark quick and easy, offering fixed fee quotes with a fast turn around.
Duration of Protection
As mentioned above, you can renew trademark protection (in theory) on an ongoing basis forever. Copyright protection however cannot last forever. Under the Copyright Act, copyright in works created since January 2005 typically lasts throughout the creator’s lifetime plus 70 years after their death. But there are some exceptions depending on what type of work it is:
- Sound recordings and films continue for a 70-year period after the expiration of the year in which publication first occurs.
- Television broadcasts and sound broadcasts continue for 50 years after the expiration of the year in which publication first occurs.
- Published editions of works copyright continues for 25 years after the expiry of the year in which the edition was first published.
As seen above, the main difference between a trademark and copyright is that generally, copyright leans toward protecting works of expression, whereas trademarks protect the use of signs indicating a business’s brand. Another distinguishing factor is whether an owner is required to register their work. Additionally, the two differ in terms of how long they will offer protection. Despite these differences, both forms of intellectual property protection are extremely important for businesses. Therefore, business owners should understand and familiarise themselves with the benefits of enforcing their copyright or registering a trademark.
Fiona is a Paralegal working in our content team which aims to provide free legal guides to facilitate public access to legal resources. With an interest in information, media, consumer and employment law, her primary focus is on how technology will affect the future of the legal industry.