We see these symbols everywhere: trade mark (™), registered (®) and copyright (©) on products, brands, and other content. However, it’s very important for businesses starting out to know the differences between these forms of intellectual property and how to use them.
In this article we’ll discuss the difference between trade mark, registered and copyright. We’ll also discuss situations where you can or cannot use them.
A trade mark identifies a unique product or service. Customers can recognise and refer to these as a brand. Examples may include a logo, sound, smell, phrase, word, shape, letter, number, or any combination of these.
The symbol ‘™’ used for trade mark typically refers to an unregistered trade mark. As a result, using the standard ‘™’ symbol will not guarantee legal protection and exclusive rights for the creator of the brand.
However, general protection may apply for trade marks using the standard symbol. Under some circumstances, common law and other state based fair trading legislation can provide some value towards unregistered trade marks.
It is not illegal to use the ™ symbol to promote goods or services without registering it. However, using another person’s trade mark whether registered or not can be an offence known as ‘passing off’ under the Competition and Consumer Act 2010. This means that you may be liable for misrepresentation.
An official IP office of a country issues and processes registered trade marks.
IP Australia is the government body which issues trade marks in Australia. By registering a trade mark you will gain exclusive rights to that trade mark, which allows you to take legal action to prevent others from using it.
Compared to the ™ symbol, using the ® on an unregistered trade mark is illegal. Only registered trade marks can carry the ® symbol. In fact, registering a trade mark will make the legal implications of someone else using your brand much less difficult and expensive.
Entirely different to trade marks, copyright is a much broader principle that applies to original work created by an individual. In fact, copyright is applied automatically to any original work regardless of whether or not the copyright symbol has been included.
Copyright provides legal rights of ownership for an individual’s original literary, musical, film, screen or artistic work (including computer software) for a limited period of time. Copyright laws are very complex and may not apply to specific types of original work. Therefore, creators should be careful when creating a new work that does not plagiarise another creator’s work.
It is essential to know what your rights are as a creator. Consider speaking to a copyright lawyer to discuss further.
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