This article is written by Narain S, from Damodaram Sanjivayya National Law University, Visakhapatnam. This is an article on the differences between copyright and trademark.
It has been published by Rachit Garg.
You would’ve heard the words copyright and trademark often used in our day-to-day life in newspapers, news channels, the internet, the things that you consume from the internet, etc. a lot of businesses have brand logos, taglines for their businesses and the products offered by them. This article will discuss the differences between such intellectual property rights and their significance. Both trademark and copyright are one of the types of intellectual property rights, these are assets that we cannot touch (or an intangible asset) but they have a monetary value in one form are the other. We shall discuss what trademarks and copyrights are, the purpose of such intellectual property rights, and the difference between both of them in this article.
Purpose of a copyright
- Let us say you are a movie director and you have an excellent story in your mind for making a movie, and you know for sure that if the movie is directed and hits the theatres, you will earn a lot of money out of it. Excited by this idea, you write a script for the movie based on the story that is in your mind. But after some days, you read in the newspaper that someone you were talking about this movie with has announced that they are going to make a movie with a very similar storyline to that of yours. Now you feel betrayed and helpless. Does this sound familiar to you? Well, this has been happening in the film and literature industries for a very long time and every time copyright has come to the rescue of the owner of the original work.
- The purpose of the copyright is to make sure that only the creator is able to utilize the copyrighted work and that anyone other than the creator is not able to reproduce or use or trade the copyrighted work in any way. We can say that its main purpose is to protect the original work from those who intend to copy it in the best interest of the owner or creator of the work. Copyrights usually protect intellectual property in the form of literature, drama, music, sound, and other artistic works. Some of the things for which a copyright can be obtained are poetry, novels, books, stories, screenplays, and other forms of writing; movies; videos; songs; music; other forms of audio materials; video materials; art forms such as painting, sculptures, architecture, research works; and computer software.
- It is to be noted that as long as the original work created by the owner is preserved in some tangible form, the copyright law protects it as and when it is created. On the other hand, if the work that was created by the owner is not available in some tangible form, such a creation is not protected by copyright law and cannot be copyrighted, for example, a speech that isn’t turned into a textual form or a recorded audio form.
- There are some works or creations that cannot be copyrighted under copyright law. Some of them are new ideas, discoveries, principles, and works that are common assets to society such as calendars, height charts, and a list of all the ingredients or.contents used in preparing a dish, but a recipe or instructions for cooking is still allowed to be copyrighted.
- As soon as a work is created by a creator, copyright is naturally endowed to the creator or the owner over the work that the creator has created. But to get better legal protection for the created work against the copyright infringers it is advised to register the copyright of the creation. The total time period for the protection of the copyrighted work is the creator’s lifetime along with an extra sixty years.
Laws in India dealing with copyright
The Copyright Act, which was enacted in the year 1957 is the main law that governs everything related to copyright in India. The Copyright Rules which were notified in the year 1958 also along with the Copyright Act 1957 govern the copyright-related issues in India. The Berne Convention and the Universal Copyright Convention have an impact on the copyright laws that were enacted in India because India is a signatory to both the Berne Convention, and the Universal Copyright Convention. India is also a member of the Rome Convention of 1961. India is also a signatory to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The Copyright Act of 1957 was amended thrice after its enactment. The Copyright Act was amended in the year 1999, and in the year 2002. Lastly in the year 2012, The Copyright (Amendment) Act, of 2012 came into force by virtue of the 2012 amendment. The primary features of this amendment are that its objective is to make sure that more just, fair, and reasonable laws and frameworks exist in India for copyrights and the administration of copyright protection. It further makes its goal to make sure that the owners of copyright and creators of copyright get due credit and get financial gain out of their work. The amended act makes it compulsory to share the profit earned by using any cinematographic creation or audio creation such as movies, songs, music, etc with the creator or the owner of the work.
Important provisions regarding copyrights in India
Rights under Section 13
Section 13(1) talks about the types of work that can be copyrighted. According to this Section, any original literary, artistic, cinematographic, or sound recording works can be copyrighted and the copyright is valid all over the country. Section 13 also talks about when copyright does not subsist such as when a part of a movie that was made is actually copied from some other movie, then copyright won’t be given to that work.
Economic Rights and Moral Rights
As per Section 14, an owner of a copyright gets some exclusive rights to perform the following rights. If the work is a literary work then the owner gets the right to reproduce it and store it in any way (electronic) as per the owner’s wish, the right to give such copies of the creation to the public, the right to perform the art in front of the public, the right to make a cinematic work or sound-related work based on the work, the right to translate the work into any other language, the right to create an adaptation of the creation. If the creation is a computer program the owner will get along with all the other rights, the right to sell a copy of the computer program, give the computer program for rental in a commercial way, along with all the other rights mentioned in Section 14 an artistic work can be turned into an electronic form and converted from a particular dimension to another dimension such as 2D to 3D. All the mentioned rights apply to artistic, cinematographic, and sound recording-related works
Unlike economic rights, moral rights focus on the rights of the author of a particular work and not of the owner of that work. These rights never get expired and they cannot be transferred to someone else. As per Section 57, the author solely has the right to claim to be the author of the work that they created. The author also has the right to stop the owners of the work from making any changes, altercation, and modifications to the work or get appropriate compensation from them for the changes made as long as the modification hurts the honor and reputation of the author. The author cannot claim damages or restrain the action of the owners merely because the author is not satisfied with the modification made or dislikes it. Any such right does not apply to the authors of a computer program.
Term of the Copyrights in different situations
In a normal artistic work such as music, art, drama, etc except photography as per Section 22, the copyright term is usually the lifetime of the author (when the author is alive) plus sixty more years after the death of the author. As per Section 23 in case an artistic work is published by an anonymous person or a pseudonymous person then the copyright is valid for sixty years from the starting of the first calendar year after the date when the work was first published. As per Section 24 in case of joint authorship and one of the authors dies, then the other author will get posthumous copyright of sixty years added to their lifetime. As per Section 26, the copyright term for a cinematographic work is sixty days from the start of the first calendar year after the date of first publication. As per Section 27, the copyright term for a sound recording work is sixty days from the start of the first calendar year after the date of first publication.
What is a trademark
According to the Section 2(zb) of the Indian Trademarks Act, 1999 a Trademark or (“TM”) is defined as a “mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include a shape of goods, their packaging, and combination of colors.”
We can say in layman’s terms that a trademark is some form of a mark of identification that is used by businesses to distinguish their product or service from that of others and competitors. These marks of identification can be a device, a brand, a label, a logo, a ticket, a signature, a word, a numeral, the shape in which the goods are sold in the market, the packaging of the product, a particular color, or any combination of the above-said things.
Purpose of a trademark
The main purpose of a trademark is to make sure that the goods and services offered by a business are distinguished from that of other goods or services offered by competitors or other players in the market. A trademark is often used to protect the legacy, fame, and popularity of a company’s goods or services for various reasons such as quality, quantity, time taken for rendering service, production process, etc of the goods and services that are offered by that company. Trademarks protect the exclusivity of the product and services and the business for the sake of the business as well as the customers of such businesses.
Laws in India dealing with trademarks
The Trade Marks Act, of 1999 replaced the Trade and Merchandise Marks Act, of 1958 and started governing trademark-related matters in India. The Trade Marks Act, of 1999 was amended in the year 2010 and as a result, the Trade Marks Amendment Act of 2010 came into force in India. India is a signatory to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) and as a result, the trademark laws in India had an impact on TRIPS and were made in such a way to match the uniform standard of trademark laws around the world.
Important provisions regarding trademarks in India
As per Section 7 of the Act, the registrar is required to classify the goods and services in accordance with the “International classification of goods and services”. The International Classification of goods and services is usually known as the ‘Nice Classification. Nice Classification came into existence because of the Nice Agreement of 1957. The Nice Classification has 45 classes under which goods and services can be classified. The classes from 1 to 34 and 34 to 35 are for goods and services respectively.
Refusal of Trademark registration
As per Section 9, a trademark registration can be refused on the grounds that a trademark doesn’t have any distinctive characteristics, trademarks which are used to show that a particular product or service has the desired “quality, kind, quantity, values, intended purpose, geographical origin or the time of production”, or trademarks that have become customary or traditional in the currently used languages or trades that have well-established practices. As per Section 11, a trademark is likely not to be registered if that trademark will create confusion among the public, it is similar to that of other trademarks present in the market.
Section 27 of the Act states that a person cannot initiate any proceedings for infringement of a trademark or recover damages if the trademark is not registered that is an unregistered trademark. So basically unlike copyrights a person with a trademark does not get any rights automatically, they will have to register the trademark in order to get all forms of legal standings and remedies.
As per Section 29, a trademark infringement takes place when a person uses a trademark for their trade, which is very similar to that of a registered trademark that exists in the market, or when a non-registered business uses the registered trademark when a person authorized to use a trademark uses it for a different product for which the trademark wasn’t registered. If the infringed trademark is used by a business in its activities, or if the trademark is printed then it also comes under trademark infringement.
What is included in a trademark
A trademark includes all kinds of representations used by companies to distinguish their product from that of others in the market. There are various categories and types of trademarks that are used by businesses and organizations in the market. Some of them are listed below.
Word marks include words such as text, numerals, alphabets, letters, or a combination of them and other forms of words. When a wordmark is given to a business organization, they only have rights over the word, letters, alphabets, or numbers and they don’t have any right over the representation of the words or numerals. Some examples of a wordmark are the following symbols that we come across in our day-to-day life – Google, Coca-Cola, and Canon. Taglines and Slogans will also be considered as word marks and some examples of such word marks are “Just do it” used by Nike and “I’m loving it” by Mcdonald’s.
Under the device mark, a business is given the exclusive right to use a particular form of representation of words, alphabets, numerals, and letters. The trademark is given to the usage of a unique form of representation of the trademarked words. Usually, this type of trademark has an artistic or pictorial element added to the words that are being used. Some examples of Device marks are the logo of Android, the symbol of IBM, the Samsung symbol, etc.
Collective marks are trademarks reserved exclusively by a group of people or an organization and the trademark is protected by them collectively. It is used by them to differentiate their product or services from that of people outside the organization. Usually, these products or services will have a unique feature that is only provided by the members of such organizations or groups. An example of this is the CA symbol used exclusively by the members of the Institute of Chartered Accountants of India.
Service marks are trademarks given exclusively to the services offered by a particular individual or organization. They are used to differentiate their services from that of the others present in the market. They usually have a unique way in which the service is offered. The service marks are used by all types of service providers such as transportation providers, communication firms, restaurants, hotels, saloons, software providers, health care service providers, educational institutions, etc. an example of a service mark is the “Fly the Friendly Skies” tagline used by the United Airlines.
Certificate marks are used by businesses to convey to their consumers that the product or service that they offer meets some prescribed standards. It is issued by a certifying organization or institution which usually makes sure that the product or service goes through an audit process and matches the standard of quality prescribed by them. This gives assurance to the consumers that the product or service that they are consuming is of good quality and meets the prescribed standards. Some examples of certificate marks are the India Organic certification mark issued for food products, Hallmark issued for gold and silver jewellery by the Bureau of Indian Standards, and the ISI mark issued by the Bureau of Indian Standards for industrial products.
Series trademark comprises a family of marks with similar suffixes, prefixes, and syllables. Series trademark has a group of trademarks that resemble each other in some way. These are used by big businesses to protect their trademark. An example of a series trademark is the ‘Mc’ series or pronounced mac series used by the McDonald’s company.
Well-known trademarks are trademarks that are easily recognizable by a large number of people. These type of trademark have better protection as it is very familiar to a lot of people and duplicating or copying them will be very difficult. A well-known trademark need not be known by all but at least by a large number of people from a relevant sect such as consumers, businesses, service providers, etc. some examples of well-known trademarks are Bata, Benz, Bisleri, Microsoft, Bajaj, etc.
A Colour trademark is a type of unconventional trademark. An unconventional trademark is a trademark given to an inherently distinctive nature of a trademark. If a color becomes a distinctive distinguishing identity for a product or service, it can be registered under the color trademark. Some examples of color trademarks are Red wine, Cadbury purple, Barbie pink, Target Red, etc.
A sound trademark is an unconventional trademark. Sounds and music such as musical notes which distinguish products or services provided by businesses with their distinctive nature can be registered as a sound trademark. Some examples of sound marks are Time Warner Entertainment’s famous looney tunes theme. The four bell sound used by the Britannia Industries, etc.
Smell marks are given to smells that are very distinguishable which can be associated with a product and are not confused with any other smell. Smell marks are also an unconventional trademark. Some examples of smell marks are the bubble gum smell used for the sandals and the flowery musk scent used by the Verizon stores in their stores.
Shape marks are given to shapes of the goods or the shapes of the packaging that have the capability to distinguish the product from that of others. Shapemark is also an unconventional trademark. Have you noticed that you are able to recognize a coco-cola bottle without it having any label? And most of us can differentiate a Pringles chip from that of a different one, well these are some day-to-day examples of shape marks used by businesses around us.
Difference between copyright and trademark
|Purpose||The purpose of copyright is to make sure that the interest of the creator and creation is protected by giving them the exclusive right to utilize or distribute their creation.||The purpose of the usage of trademarks by businesses is to make sure that the exclusivity or distinctiveness of their product or service is retained.|
|Governing Act||Copyrights in India are governed by the Indian Copyright Act enacted in the year 1957.||Trademarks in India are governed by the Indian Trademarks Act, 1999.|
|Target objects||The primary target of copyright is to provide protection for dramatic, linguistic, artistic, and musical works.||The primary target of trademarks for providing protection is the name and fame or the brand name of a trade or company or business.|
|Recognition||The copyright of a work helps in recognizing the original aspect or nature of the work that has been created by the owner.||Trademarks help the businesses and consumers recognize the quality and standards of the service or product provided by the business and they make the consumers relate to a particular brand or company.|
|Benefits||The copyright protects the original work or creation from being used, duplicated, reproduced, or sold by someone other than the creator or someone authorized by the creator in any mode including online and offline.||The benefit that a trademark provides is that it restricts the other players and competitors in the market from using the trademarks such as slogans, logos, etc. of a business, thereby protecting the brand name and establishing trust among the consumers.|
|Exclusivity||The copyrighted work provided the owner or creator of that work exclusive rights to utilize the work for financial gains.||The trademarks help businesses in protecting and retain the exclusivity of the products or services provided by them.|
|Duration of Protection||In India, the duration of the validation of copyright issued is the lifetime of the creator plus sixty years for an individual owner. whereas a non-individual owner, the issued copyright may be valid for over sixty years from the date of the creation to the date when it was published.||Trademark registration is valid for ten years and it can be renewed after every ten-year validation period gets over for protecting the trademark from competitors.|
|symbol||The owner or creator can for their works and creations that have a copyright use the ‘©’ symbol or the alphabet ‘C’ even without registering it.||The products or services that are issued a trademark or a logo are allowed to use the symbols such as the ‘®’ sign, the ‘™’ sign, the ‘SM’ sign, and the ‘TMT’ sign.|
|What does it protect?||Ideas, Recipes, Discoveries, and Principles that are in a tangible form such as in writing or recording.||A Brand name, a Slogan, a Logo, a Business name, a tagline, etc.|
|Example||A poem written by Vikram Seth is copyrighted, and songs composed by Taylor Swift are copyrighted.||The logo of Google and Apple are trademarked, and the tagline of Nike is trademarked.|
Registration of trademark vs copyright
While registering a Trademark, one has to register their product or service under 45 trademark classes that are mentioned in the Act. Out of the 45 trademark classes, 34 are for products, and 11 are for services. Examples of such classes are class 25 used for clothes, and class 9 used for computer software. Trademark registration usually involves five steps. They are searching for a suitable trademark that is not listed in the Trademark Registry of India, the next step is filing a trademark application in the Trademark Registry of India, then the examiner might take twelve to eighteen months to give an approval which may be conditional or absolute, then three to four months are given for receiving any objections by publishing it, then finally the certificate of registration is issued to the business. The business will have to renew the trademark after the prescribed period. Whereas a registration of copyright is entirely different from that of Trademark registration. As we discussed before Registration of a copyright is not mandatory but registering copyright gives you some perks such as better legal standing and protection. There are briefly four steps involved in registering copyright for work the owner or the authorized person is required to file an application for copyright registration, then a minimum thirty days time period is taken by the authorities to examine the application and receive any objections if no discrepancies are found and no objections are raised then the Registrar of Copyrights, the will register the copyright in the “register of copyrights” and a certificate of registration to the applicant.
In conclusion, we can say that the main difference between a copyright and a trademark is that, copyright is used to protect the originality of the artistic and other forms of creations such as Literature, art, music, ideas, etc. for the sake of the owner of the creation, whereas trademark is used to distinguish the product or service from of a business from that of the others to protect the exclusivity and identity of the business for the sake of the business owner as well as the customers. Copyright and trademark may be used to protect intellectual property rights but they protect entirely different forms of intellectual property and they both are governed by totally different Acts and have their own procedure for registration. We can infer from our observation that Trademarks and trademark registration are way more complex than copyrights as they have a mandatory registration rule, involve different classes to register under, find a unique trademark that is not used by anyone else, longer time duration taken for examining, receiving objections and issuing the certificate and a shorter validation period which leads to renewal of registration periodically.
Frequently Asked Questions (FAQs)
What is the main difference between a copyright and a trademark?
A copyright protects the original artistic works whereas a trademark protects the unique identity of businesses
Is copyright registration mandatory?
Registration of a particular work is not mandatory to get copyrights, in fact, the copyrights are vested to the owner automatically when a work is created. But for legal purposes such as legal protection of the work, registration of the copyright is widely advised.
How long is the registration certificate of copyright and trademark valid?
The validity of Copyright is the lifetime of the creator plus sixty years for an individual owner and for a non-individual owner, the issued copyright may be valid for over sixty years. Whereas trademark registration is valid for ten years and can be renewed after every ten-year validation period gets over.
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