Trade marks versus copyright, what’s the difference

They are both intellectual property rights, they are both useful tools against copiers and infringers, and they are both valuable business assets but what’s the difference between trade marks and copyright – well, glad you asked and let me explain:

Trade marks protect brand identifiers, the rational being that when consumers purchase a product with a brand name on it they will know what quality and type of product they are purchasing (for instance when I purchase my favourite brand of chocolate bar I will know what to expect from my previous (and extensive) purchase of the brand).

Trade marks are a registered intellectual property right meaning that an application needs to be made to an Intellectual Property Office (the UK Intellectual Property Office in the UK) where it will then be examined and published for third parties to object to. After the publication period, the Intellectual Property Office will then issue a registration certificate. A registration will then provide the rights owner with the exclusive right to use that brand. The registration itself will usually take the form of a word mark (i.e. a sequence of letters) or a logo; most brands will register a word mark and logo to provide maximum protection from any copiers.

The most common test for trade mark infringement is where a third party uses a sign or mark that is identical or similar to the trade mark and is being used for identical or similar goods or services registered under the trade mark, which creates a likelihood of confusion.

On the other hand, copyright is an unregistered form of intellectual property. This means that it will arise automatically once the copyright work is created. Copyright will protect (amongst others) literary and artistic works and the term of protection is generally the life of the author plus an additional 70 years.

There is no registration process for copyright in the UK, this means that care needs to be taken when any literary and artistic works are created to ensure that the “chain of title” (i.e. the ownership) of the copyright ends up where it needs to be. If a copyright work is commissioned  from a freelancer or contractor then the person commissioning the work should ensure that there is an assignment or transfer agreement in place, this would then transfer the copyright from the author (i.e. the contractor) to the person who commissioned the contractor (i.e. the business owner). Things are not so complicated when an employee produces a copyright work as it will usually be automatically owned by the employer.

The most common test for copyright infringement is whether a third party has copied all or a substantial part of the copyright work (i.e. a copy and paste).

As copyright and trade marks both operate in different forms, they are beneficial to each other and work in conjunction to secure a business’s intellectual property. Businesses should ensure that all of their brand identifiers are protected as trade marks and they are the owner of all of the copyright used in the business, for example in any literary and artistic works.