Trademark vs Copyright: What’s the Difference?

Author: Ian Aldridge, Progressive Legal

Copyright and Trade Marks are both types of Intellectual Property (‘IP’) and operate quite distinctively. If you are a business owner, understanding the distinction between the two will allow you to consider which may be required for your business, in addition to preventing you from potentially infringing another’s IP rights. This article will outline Copyright vs Trademark differences.    

What is copyright?

Copyright refers the protection granted to original works. In Australia, this protection is granted automatically. Therefore, once copyright ‘subsists’ in a work, it is protected by copyright.  

Under the Copyright Act 1968 (Cth) protected works are separated into the following categories: 

Ultimately, copyright is concerned with the expression of the ideas and not simply the ideas themselves (the idea/ expression dichotomy). For example, you can claim copyright over a drawing of a cat, but you cannot claim copyright in all drawings of cats.  

However, the more simplistic a work is, the less it is likely to be protected by copyright. For instance, single words, titles and names are not covered by copyright. The eminent Australian copyright case of IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14 relevantly notes that: 

“The requirement of the [Copyright Act 1968 Cth] is only that the work originates with an author or joint authors from some independent intellectual effort” at [48].  

Further, it is important to note that copyright is only recognised where a work is reduced to ‘material form’. This means you cannot claim copyright in something that has not been reduced to something tangible or electronic (such as a USB or storage disk).

What rights do I have under copyright?

Copyright gives you, the owner, an exclusive bundle of rights to do certain things with the work. This includes: 

1. Reproducing or copying the work; 
2. Communicating the work to the public; 
3. Publishing the work; 
4. Performing the work; and 
5. Adapting the work.  

Where someone who is not the Copyright Owner exercises any of these rights (or authorises someone else to do so) without your authorisation, this may constitute an infringement of your copyright.

Only where your have provided a licence to someone, can they use your copyright work. Click here for expert advice in relation to copyright infringement.

What is the duration of copyright?

Copyright starts when a work is created and continues for the duration of your life time plus 70 years after you die. After this, the Copyright work enters the public domain and anyone can use it without it constituting infringement.  

When don’t I own copyright?

Generally speaking, you will not own Copyright where you are employed to create a work for a company (the Company will own the Copyright) and where someone pays you to take photos for private use.

Trademark vs copyright

Unlike Copyright, you can register a Trade Mark with IP Australia and overseas.  

A Trade Mark is used as a brand protection tool and operates as a ‘badge of origin’ in order to distinguish your goods amongst other businesses which are similar to yours. A Trade Mark can consist of the following: 

1. A word;  
2. A phrase; 
3. A letter; 
4. A logo; 
5. A smell;  
6. A picture;  
7. A colour which distinguishes your brand; 
8. A shape 

Or any combination of the above.  

In essence, a trademark is something that you use to identify your business like a business name, slogan/tag-line, or logo etc, whereas copyright exists in all your literary works and other content that either you or the business/company creates.  

In say for instance a logo, the business might own the copyright in that logo, but also it is registered as a trade mark. So, there are 2 pieces of IP in that one logo. Same with sound, content, logo, tag-lines in a promotional video production for a business. You can see there would be overlap in the IP as they are combined.

They can also be owned by multiple individuals. E.g. the videographer contractor that shoots the video technically owns the copyright in the video (unless it is expressly assigned to the company). 

What does a trade mark protect and what doesn’t it protect?

Essentially, a Trade Mark protects your brand by giving you the exclusive rights to that mark. Where someone uses your Mark without permission, this will constitute infringement.  

Alternatively, a Trade Mark will not be protected if it is merely descriptive of the products of services which your business is offering.

What is the duration of a trademark vs copyright?

A Trade Mark has a considerably shorter lifespan than Copyright.  

Your Trade Mark registration lasts for 10 years from the date of filing. You can renew your registration 12 months before your renewal is due.

Can I just register a trademark but never use it?

Your Trade Mark must be used or else you risk it being removed from the register on the grounds of non-use. This prevents businesses merely registering Trade Marks to pre-emptively stop others from doing so. 

5 trademark tips

In order to protect your Trade Mark it is important to note the following: 

1. Register your mark with IP Australia (ensuring it is filed in the correct name/ entity to which you want to prescribe authorship to); 
2. If you have a registered Trade Mark use the ® symbol; 
3. If you have an unregistered Trade Mark, use the “TM” symbol; 
4. If you wish to allow someone to use your work, ensure you have an agreement in writing to illustrate what they can and cannot do with the work; and  
5. Take action where you are made aware that someone is infringing upon your Trade Mark rights (such as seeking legal advice).  

Click here for expert trademark advice across all areas of trademark law. 

Key takeaways: trademark vs copyright

Copyright and Trade Marks are important types of Intellectual Property with considerable differences. However, both endeavour to afford the requisite protection for the creators.  

When it comes to Copyright vs Trademark, you should remember the following:  

1. Trade Marks are registered with IP Australia, Copyright does not have to be registered;  
2. The duration of a Trade Mark is around 10 years, Copyright is the lifetime of the author plus 70 years; and  
3. Copyright attaches to specific types of work, whilst a Trade Mark protects names, logos, shapes, smells, colours etc.  

If you require any advice or assistance from experienced Intellectual Property Lawyers, the team at Progressive Legal are experts in the field. All you have to do is request our advice below, or give us a call on 1800 820 083.