Trademark Vs. Copyright

April 18, 2023

People develop several creations from the mind, such as books, music, designs, paintings, and so on. However, when protecting their creations from the wrongful use of others, a question arises: Which is the intellectual protection that applies for this specific creation? Should it be protected under copyright law or trademark law?

In AGT Attorneys, we are aware that Intellectual Property (IP Law) is a fundamental legal field for companies and people who create numerous creations of the mind. In this blog, we will aim to specify and differentiate the characteristics of trademark protection and copyrights. Both trademark and copyright are forms of protection for IP Law, and each one has its own limitations and advantages that you need to know before beginning a registration process.

What is Intellectual Property?

For the World Intellectual Property Organization (WIPO), any invention of the human mind is considered part of the Intellectual Property.

"Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce."

The various types of intellectual property are protected under: patents, copyrights, and trademarks which allows people to receive recognition or financial retribution over what they developed and created.

What is a Trademark?

A trademark is the group of distinctive signs that identify and distinguish a certain product or service on the market, such as name, phrases, symbols, colors, sounds, slogans and logo, even the shape of the package, bottle, etc.

A trademark owner can be an individual, business organization, or any legal entity and its symbol can be found on the package, a label or on the product itself.

Trademarks can be registered and protected under Intellectual Property Laws under each country. However, when trademarks need to be protected internationally, systems like the Madrid System come in handy.

The Madrid System is a treaty administered by the World Intellectual Property Organization (WIPO), which allows trademark owners to register their trademarks internationally in a simpler and more cost-effective way. This system is governed by two agreements: the Madrid Agreement and the Madrid Protocol. Countries and intergovernmental organizations that adhere to these agreements form the Madrid Union. By filing a single application with WIPO, you can protect your trademark in multiple countries of your choice, without the need to file separate applications in each individual country.

If you want to start the trademark registration of your brand, the first step is to make a trademark search to ensure that your company or product's name is not already in use. With the legal counsel of a trademark attorney, the registration process will go smoothly and without many obstacles.

Once it has been established that your brand is unique, the next step will be to proceed with the trademark registration. While it is being processed you have to use the "TM" –for goods– or "SM" –for services– mark, and after the registration, you can use the ® or registered sign.

What is a Copyright?

A copyright, also known as author's right, is the concept used to define the rights a creator has over their literary and artistic works. The rights included in a copyright, include both moral and patrimonial rights, over works like books, music, girls, computed programs, and so on. A copyright is a fundamental right covered and included under the Universal Declaration of Human Rights.

Copyright is quite similar to a trademark, however the difference falls under the products it protects. Copyrights protects original works of creativity, protecting the author's right to gain recognition and financial benefit of their invention.

As well as trademark, copyright should be registered to enforce the ownership and right to use Intellectual Property. Once a copyright registration process is done, the author holds the exclusive right to reproduce the original creation and derivative works.

There are some works that can't be copyrighted because of their nature, such as those that are not fixed in some tangible form like a speech that wasn't recorded or written, ideas, procedures, methods, mathematical concepts, or principles.

Also, regarding creations that can't be protected under copyright law includes those works who are in the public domain and don't have original authorship, like historical facts, measures charts, and rules obtained from public documentation. The same happens in the case of titles, names, phrases, logos, slogans, etc.; which should be trademarked instead of copyrighted.

Which one to choose?

As lawyers, we know how confusing laws can be, even more, if we find two similar concepts, as in the case of trademark and copyright. For this reason, we have collected some basics points to help you decide which one you should use to protect your goods or service' rights.

Copyright protects original works of authorship fixed in any tangible expression like written, recorded, sculpted, painted or printed. On the other hand, trademark protects specific signs such as, brand names, logos, or slogans that distinguish your brand from those of others in the market.

Both protections give the owner exclusive rights to the product or service, excluding others from benefit without authorization.

Trademark needs a registration for protection, copyright is automatic at the time you create your work, and it's available to the public, however doing so gives you advantages.

Trademark protection can last forever, whereas copyright offers protection while the author is alive and plus 75 years after his death.

When you copyright a work, you can use the symbol ©, which can be placed on an original piece of work created by you. On the other hand, creating a trademark allows you to use the TM sign and once it is registered you are able to use the ® sign on the package of your product.

Here at our law firm, you will find a well-trained staff of trademark attorneys that will provide you with the best advice on Intellectual Property Protection for your creation or brand's name.

Write to us on our Contact Form, schedule your legal appointment with our lawyers through the following link or contact us at +57 310 5706331. We will be happy to assist you!

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