Trademark vs Copyright: Which One Do You Need?

Intellectual property is a valuable asset, and you can safeguard it with either trademarks or copyrights. While these tools overlap in some ways, it's important to understand the distinct purposes of trademark vs copyright protection.

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Trademark protects brand logos and names to help tell services and products apart. Copyright safeguards original creative works such as writing, music, and art, which gives creators control over their use and distribution.

Trademark Copyright
Legal Protections Offered Companies use trademarks, like logos and names, to stand out from the crowd. This way, you know exactly what the product is and who made it. Stops people from copying creative work, like books, songs, and computer programs.
Registration You must register a trademark with IP Australia. They will check to make sure it's unique. When you make something original, it is automatically, immediately yours.
Duration of Protection Renewable every 10 years, offering potentially perpetual protection. Depending on the form, typically lasts for the lifetime of the author plus 70 years, providing long-term but finite protection.
Infringement Determination and Enforcement Imagine someone uses a logo that looks almost exactly like the Nike swoosh to sell shoes. That's illegal because it's too similar to the real, registered Nike trademark. Copyright infringement happens when someone uses something creative that is protected by copyright without permission. This means they're copying it in a way that goes against the rules set by the person who created it.

What is a Trademark?

A trademark is a type of intellectual property that is legally registered. It can be a legally protected phrase, symbol, or word, and represents a specific company or product. A registered trademark gives the owner exclusive rights to use the mark, which prevents competitors from using similar symbols or identifiers that might confuse consumers.

You have to register your trademark for it to be enforceable under Australia’s Trade Marks Act 1995. The class of your trademark should be in the same industry or category as your large or small business.

What Do Trademarks Protect?

What do Trademarks protect?

Intellectual Properties protected with Trademarks

Trademarks protect the brand identity of businesses, ensuring that consumers can easily recognise and distinguish the goods or services of one entity from those of its competitors. This protection enables businesses to build trust and loyalty among customers, safeguard their market presence, and prevent confusion or deception in the marketplace. These include:

    • Business and product names: Prevent others from using confusingly similar names

    • Logos and symbols: Safeguard your visual brand identity

    • Slogans and taglines: Ensure exclusive use of catchy phrases associated with your brand

    • Distinctive sounds: This could include a unique jingle or sound associated with your product or service (rare, but possible).

Copyright is an intellectual property right awarded to any creator of an original work. It grants the creator the exclusive rights to use and distribute their creations, typically for a limited period. This legal protection covers a wide range of creative expressions, including literary, musical, dramatic, and artistic works, as well as software, films, and sound recordings.

Copyright allows creators to earn compensation for their creative investments. You don’t have to register your copyright to enforce it under Australia’s Copyright Act 1968 or its related regulations. All you would need to do is prove ownership by making sure it's documented on paper or electronically.

In Australia, copyright protection consists of two main categories: works and subject matter other than works. The works' category includes creative pieces like books, plays, music, and art. The person who created these works, often called the author, is usually the copyright owner.

The second category, subject matter other than works, includes items like sound recordings, films, and broadcasts. Copyright in these cases typically belongs to the business that produced them, such as the film studio or the record label, rather than the individual artist or director.

The main idea here is that the creator or producer has the right to control how their work is used, whether it's a song, a film, or a painting. They can allow others to use, share, or even change their work under certain conditions. If someone uses their work without permission, the copyright owner can take legal action against them for copyright infringement.

Under the Copyright Act, anything creative made after January 2005, such as books or songs, is protected by copyright for the creator's lifetime plus 70 years after they die. However, there are exceptions to this rule:

    • Music albums and movies have copyright protection for 70 years after they were first released to the public.

    • TV shows and radio programs have protection for 50 years after their first broadcast.

    • Printed materials, like books or magazines, have a copyright term of 70 years from their first publication date.

If you create something unique, like a story or a drawing, you get special rights to:

    • Share it with others

    • Make copies

    • Change it or use it in new ways

    • Give it to people or sell it.

Since January 2005, if you make something creative, these special rights protect your work for your whole life plus 70 years after you die.

These rights help to ensure no one else can just copy or use your work without your permission. If someone does use your work without permission, you might be able to take them to court. But, if you want to use someone else’s creative work, you need to ask them first.

Usually, if you create something as part of your job, the company you work for owns the copyright, not you. This is also true if someone pays you to create something for them, like taking photos for a personal project.

When do businesses need both trademark and copyright?

Why does a business need both Trademark and Copyright?

Having both trademark and copyright protection is crucial for businesses to safeguard their brand identity and creative works. This helps them maintain a unique position in the market and prevent others from unfairly benefiting from their creativity and reputation.

Below are a few examples of how trademark and copyright protection can be used in your business.

Logo Protection

When a business creates a logo, the design itself can be trademarked. This means no other business can use a similar logo that could confuse customers. At the same time, the artistic creation of the logo is copyrighted, which covers the artistic aspects and design of the logo.

Marketing Materials

Slogans and taglines used in advertising can be trademarked to ensure that only your business can use them in your industry. This prevents competitors from using similar phrases to confuse consumers.

However, the actual advertising copy (the words used in your advertisements) and designs are protected by copyright, which ensures that others cannot copy your unique advertising materials directly.

Software and Websites

The name of a software program or a website can be trademarked to prevent others in the same industry from using the same or a confusingly similar name. Code, user interface, and graphic design of the software or website are also protected by copyright. This means that while others can create software or websites that perform similar functions, they cannot copy your code or design.

How to Protect Your Intellectual Property in Australia

If you want to make sure no one else can use your creative expressions or business logos in Australia, here's what you can do:

    • Register your trademark: First, go to the IP Australia website to learn how to register your trademark. This will help protect things like your brand name or logo.

    • Use trademark and copyright symbols: Putting a ©, ®, or ™ next to your work or logo isn't required by law in Australia, but it's a good idea. It lets others know that you legally own your work. Use ® for trademarks you've registered and ™ for those you haven't.

Trademark and copyright laws can be confusing, but don't let that stop you! Whether you want to protect your company’s beautiful logo or a brilliant story you’ve written, Macmillan Lawyers and Advisors can help.

Get your creative expressions protected! Contact Macmillan Lawyers and Advisors today, so your work stays yours. Take action now and build a strong future for your innovative projects!

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Ready to take the first step in protecting your brand? Contact Macmillan Lawyers and Advisors for a free 30-minute consultation.

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