Copyright infringement vs trademark infringement

If you’re new to navigating your rights under Intellectual Property Law, getting lost in the details can be easy. When it comes to copyright infringement vs trademark infringement, this can be particularly challenging.

At IP Guardian, our team of specialist patent and trademark attorneys have years of experience dealing with every aspect of Intellectual Property Law. In this guide, we’ll walk you through the key differences between copyright and trademark law, how you establish ownership and where to find help for fighting infringement.

What Is Copyright?

Copyright is a recognition of intellectual property that protects any form of tangible expression. Copyright does not require formal registration to come into effect and is considered to be in place from the moment the work is created.

It is important to note that copyright does not protect the original idea from infringement, only the original expression of this idea. An example of this could be the retelling of a classic story such as Cinderella, you cannot stop anyone else from doing the same, but you can stop them from retelling it in an identical way to yourself.

What Does Copyright Protect?

There are four recognised branches of creative work covered by copyright, these include:

• Literary works
• Dramatic works
• Musical works
• Artistic works

The moment an idea is written down or recorded it is automatically protected. This also extends to the protection of new software code. Protection is only available to works that exist in a tangible form - simply verbalising an idea without physical documentation does not protect you as far as the law is concerned.

What Is Copyright Infringement?

When it comes to defining copyright infringement, it is clearly outlined in The Copyright Act 1968 (Cth) (Copyright Act). This act asserts that these works cannot be copied, reproduced or communicated without the copyright owner's permission. Engaging in any of these activities constitutes infringing behaviour.

Copyright Ownership

Proving ownership of copyright can be a little more challenging than other forms of IP. This is because there is no formal process for registering ownership.

Ownership can be established by showing original documentation or recordings and by demonstrating that their skill and labour were used to create the work in question.

What Is A Trademark?

A trademark is an image, symbol, design or expression recognised as a distinguishing feature of an individual, business or organisation. A trademark shows the origin of goods or services. McDonald’s golden arches, Nike’s swoosh symbol and KFC’s ‘finger lickin good’ slogan are all easily recognised examples of registered trademarks.

In short, it is legally recognised proof of ownership of a chosen image, symbol or design used to market goods or services.

What Does Trademark Protect?

Similar to copyright, a trademark prohibits another individual or business from selling their goods or services using an already known symbol, design or expression.

A trademark protects your business from copycats or infringers who would try to leverage and capitalise off your reputation or success. It helps to secure your brand identity and makes it easier to defend.

What Is Trademark Infringement?

Trademark infringement could be something as obvious as a company creating counterfeit goods for sale and attaching your trademark to legitimise their efforts. It could also be a little less clear and involve using your trademark with a slight variation in colour, text or image.

In the latter instance, these small changes still constitute infringement as it is viewed as being deliberately deceptive or confusing to the customer about the origins of the product or service.

Ownership Of Trademarks

The good news is that establishing ownership of a trademark is a lot easier than copyright. In Australia, there is a formal registration process whereby you can claim ownership of your chosen trademark.

There is a fee involved in registration and you must renew your registration every ten years. Even if registered, an unused trademark can be removed from the register via someone else seeking to use it.

Known as a non-use application, this can occur at any time during registration of a trademark. If a competing party can establish the trademark has not been used for three years, they may be able to remove it from the register. Applications filed in bad faith can also be removed from the register.

Trademark Infringement Vs Copyright Infringement - Key Differences

Trademarks and copyrights differ not only in terms of what they protect and how ownership and ownership rights are established but also in how infringement is determined. 

Below is a side-by-side comparison of trademarks and copyrights outlining what constitutes infringement, or how this is established under IP legislation. 

Defending Your Rights 

Defending copyright vs trademark infringement is handled differently. This is largely down to the fact that copyright has no formal registration process, whereas trademarks do. This can present some more unique challenges for those asserting their copyright rights.

Trademarks

When it comes to defining a trademark infringement the first thing a legal representative will seek to establish is whether it is properly registered. If it isn't, defending its misuse will be much more difficult. However, if properly registered and properly maintained, your ownership can continue indefinitely.

This makes it much easier to stop infringing behaviour as it draws a clear line between ownership and improper or unauthorised use.

Copyright

For copyright ownership timelines are a little more complex. The Copyright act typically allows for ownership throughout the creator's lifetime, plus an additional 70 years. This limited duration of protection means that in effect, your IP will eventually be fair game and copying, distributing or communicating it cannot be deemed an infringement.

Should you be made aware of an individual or business infringing on your copyrighted work, you’ll need to provide proof of your rights, including proof of when the material was first created.

Often infringers will dispute your claim and as there is no formal registry for them to check against, they are often unable to be prosecuted successfully. They simply plead ignorance.

One option for individuals hoping to secure their rights is to use a Copyright notice on any works. While not legally necessary, this can more readily prove your ownership, deliver better outcomes when pursuing infringing behaviour and deter infringement as a whole.

In either situation, there are legal avenues available for your defence and heavy penalties applied to proven infringers. While you may start with a simple letter of demand requesting the infringer to cease and desist, you also have the right to pursue court action and compensation. Heavy fines and jail time may also be ordered for significant infringement behaviour.

Need Help?

At IP Guardian, our team of highly skilled and qualified patent and trademark attorneys have years of experience successfully fighting infringing behaviour. We possess a deep understanding of Intellectual Property law, remaining abreast of inevitable changes that come with advancements in technology.

We can help you make sense of your rights, pursue and put an end to trade mark infringing behaviour as well as support you to defend against future infringements. Whether you have already taken steps to formally establish ownership, or need us to facilitate the appropriate checks and registration of your ideas, our team can do it all.

We recognise that the nuances of Intellectual Property law can be hard to follow or difficult to enact without professional support and work closely with our clients to find the optimal resolution to their situation.

Offering a free initial consultation and cost-effective rates, IP Guardian makes it easier and more affordable to protect your valuable ideas. Call today to learn more on 02 9071 0130.

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Barry Meskin

Registered Patent and Trade Mark Attorney with significant experience obtaining all forms of registered intellectual property. I hold a Bachelor of Science in Engineering, a Masters of Business Administration and a Masters of Intellectual Property. I’m passionate about showing my clients how they can protect their brands through trademark registrations.