Copyright v Trademark

by Kate Mcormack - Solicitor and Trademark Attorney

In this guide we explore the differences between copyright and trademarks and set out when to use which type of intellectual property protection.

So you have designed a catchy and distinctive word, phrase or logo and want to protect it from use by others. How you gain or achieve such protection will depend on the exact nature of the creation in question. Below we explain how to determine whether copyright will protect your creation or whether you should apply for a trademark.

Copyright v Trademark For a Word or Phrase

It is unlikely that you will have copyright protection for a single word or short phrase. In general, there will never be copyright in a name, or a title. Even slogans and phrases do not generally qualify for copyright as they are considered too short and are not sufficiently substantial. However, a longer paragraph may acquire copyright protection if is has a particular element of creativity about it.

A name, title or phrase may however, constitute a trademark. This will depend on whether it is capable of distinguishing the goods and/or services of one business from those of another. If the name is distinctive enough to do this, then trademark law may be relied upon to prevent someone else from using an identical name or a similar name for identical or similar goods or services.

Logo - Copyright it or Trademark it?

Logos are capable of being protected under copyright because they can in many circumstances be considered "artistic works" which is one of the categories of material that attracts copyright protection. Many trademarks may also be copyright works and so will be capable of dual protection. Again, there must have been an element of independent creative effort in creating the logo for it to acquire copyright protection so a photographic image or basic reproduction of an object may not be enough. It will be necessary to sgow that considerable effort went into the creation of the logo. If a logo is protected by copyright, protection will arise automatically, so no registration is required - it all rests on the nature of the logo itself.

Copyright protection can be relied upon to prevent someone else from reproducing or using a substantial part of the logo without your permission, subject to certain defences for journalistic reporting or review purposes. However, it is no use if someone else is simply parodying your logo without copying a substantial part of it, in order to cause confusion with your business.

Here, trademark protection is useful as this can be relied upon to prevent someone else from using an identical or a similar logo for identical or similar goods or services. Unregistered trademark rights may again arise automatically if you have built up goodwill in the logo but these are difficult to enforce so registering the logo as a registered trademark is the best way to protect it from exploitation by a competitor in this way.