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.
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.
There are four recognised branches of creative work covered by copyright, these include:
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.
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.
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.
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.
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.
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.
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 been unused 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.
Trademarks and copyrights differ in terms of what they protect and how ownership and ownership rights are established and each has its distinct forms of protection under Intellectual Property law.
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.
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.
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.
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.
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.
I found them online and initially I was bit hesitant to talk to them about my problem but when I spoke to Barry, I felt more comfortable, and he gave me all the information and advice I wanted without even thinking that I am going to give him business or not. Finally, I went with them, and they made the entire process so smooth and easy for me. john was keeping us updated with each step he was doing. I would recommend these guys for any patent or trademark related service.
I would like to express my thanks to Barry and his team at IP Guardian in Sydney for their assistance with our recent Trademark application. Barry was highly professional, readily available throughout the process and clearly communicated expectations. Barry even helped us refine our application so that we had a greater chance of success which was very much appreciated to avoid extra costs. I would highly recommend Ip Guardian for all your Trademark and Intellectual Property needs.
Barry, last week, you and your professional team, made my year (or probably my next 21 years). So thank you so much for your executive, calm yet very effective actions under extream pressure. Elias Hajjar, Director, TROLLEYON PTY LTD
Informative, understood the business, what it needed and answered questions in a friendly and approachable manner. Easy decision to continue working with IPGuardian for future trademarking
From the day I contacted Barry Meskin until now with my silly amateur questions, he has been nothing short of amazing. I actually NEVER leave reviews anywhere, but I felt the need to do so for Barry and his team. I myself am a tradie, so I felt intimidated speaking to an attorney. But the second I spoke to him on the phone, he made me feel right at home. Never pressured me into any decisions, yet when I decided to go ahead with him, he delivered what I needed much quicker than what I was expecting. I cannot speak highly enough of him and recommend his services 100%.
The team at IP Guardian have made the process extremely straight forward and easy for us to understand exactly what was required. I will highly recommend to our clients who need help with IP.
I have dealt with Barry over the years, his advice and experience has helped me greatly. Looking for to working with him and his team again. Maher.
IP Guardian helps protect words, symbols, letters, numbers, names, signatures, phrases, sounds, shapes and smells. Yes, I said smells.
We've had the pleasure to work closely with Barry for many years. He has been exceptional to deal with and has a keen focus in providing a commercial led IP "go to market" strategy for start-ups and well known brands. Makes it easy and always advises on different ways to navigate through the IP process.
Barry Meskin @ IP Guardian is an experienced and extremely knowledgeable expert in the domain of intellectual property, patents and trademarks. In addition he has been extremely responsive and very professional in all our dealings. I wholeheartedly recommend Barry's services to any business or anyone seeking advice in this area - great quality and great value.
