Intellectual property relates to original ideas and results that emanate from research, and generally, it covers some kind of critical business information. Intellectual property refers to that set of properties that emanates from human creative labor. Now intellectual property and rights attached to intellectual property are becoming very precious and valuable. In India, there are strong administrative, legislative and judicial frameworks to protect IPRs. Intellectual property rights are very important in the development of a country. There are different forms of intellectual property. For example, when you look at an invention and the invention is an intellectual property that can be protected by a patent, which is an intellectual property right.
WHAT IS IPR?
Intellectual Property means the property represented by the product/process emanating from creativity of the human mind, human intellect and creative ideas. It can be an Invention, original Design, Trademark, artistic creation etc. These new activities acquired the form of intangible assets owing to the inherent and practical values associated with them. Therefore, another form of property right was generated which required safeguarding for the owners of those properties. The property right, pertaining to such intangible assets, is called Intellectual Property Rights, popularly known as IPR.
KINDS OF INTELLECTUAL PROPERTY RIGHTS
A patent is an exclusive right given by the government to the applicant for his revealed invention of an industrial product or process. A patent should be new, non-obvious, useful and patentable as per the patentability criteria laid down in the patent’s law. The Government affords legal protection to the applicant’s invention for a limited term. The patent right shall be granted for a limited period, that is 20 years from the date of filing. It grants exclusive and territorial rights, and it can only be enforced within the nation where it has been granted. If a patent is granted, it prevents others from using, selling, manufacturing or distributing the invention without express permission.
A Trade Mark is a word, name, logo, label etc., which indicates the origin of goods and services and helps customers to distinguish the goods and services of one trader from the goods of the other. Trademarks, therefore, serve as a badge of origin to a brand in order to communicate to consumers. Trademark is granted for a period of 10 years and it is subjected to renewal.
Copyright is known as the legal right of the owner of intellectual property. In simple words, copyright is known as the right to copy. Copyright is a protection that covers published and unpublished literary, musical, dramatic, sound recordings, cinematographic films and artistic work. Copyright is a bundle of rights given to the author for his original work. The limited time period for copyright is generally 60years+lifetime of the author
Design means only the features of shape, configuration, pattern, ornament or composition of lines or colors. It must be applied to any article, whether two-dimensional or three-dimensional or in both forms, by any industrial process or means, which in the finished article appeal to and is judged solely by the eye. Protection rights are provided for a period of 10 years. They can be renewed once for an additional period of 5 years. As per Indian Law, the Design Act of 2000, gives the exclusive right to make, sell and use articles.
DIFFERENCE BETWEEN TRADEMARK AND COPYRIGHT
Is your company a brand as well? Do you produce unique content and assets for your company? If so, you may have thought about how to protect your intellectual property; thus, you may be unclear about the distinction between a trademark and copyright.
Fortunately, you can safeguard your company and take legal action against anyone who misappropriated your brand and intellectual property. We will outline the distinctions between copyrights and trademarks in this article so that you may determine which might be appropriate for your company and how to effectively protect your intellectual property.
Intellectual property, often known as intangible assets or creations of the mind, includes things like inventions, literary and artistic works, designs, symbols, names, and images that are useful in trade and commerce. Trademarks and copyright are two examples of intellectual property.
Therefore, the primary distinction between copyright and trademark is that, while both provide intellectual property protection, they do it in different ways and with various registration requirements.
To understand in a better way, let’s break down the details of each of these protections separately.
The copyright regime itself comprises various conventions. First, we have the BERNE convention. The BERNE convention made it easy for copyrighted works to be enforced across the globe. Then we had the universal copyright convention, we also had the ROME convention, we had the TRIPS agreement and the WIPO. In India, The Copyright Right Act was enacted in the year 1957 which came into effect in January 1958 and governs everything related to copyright. The copyright is an exclusive legal right that lasts for a certain amount of time. The right to produce more copies can be known as a literal definition of copyright. Copyright is a bundle of rights which can be granted to authors, composers, artists or creators of artistic, literary, dramatic, musical work, cinematographic films, sound recordings, software programmes, or any form of creative work. A work is considered original under copyright law if it is produced by the author using only his or her original ideas without any duplication. Copyright is generally represented by C in a circle ©.
ESSENTIALS OF COPYRIGHT REGISTRATION
It offers legal protection: Under copyright, the registration of work serves as evidence for proving the ownership of the author which would provide legal protection to him.
It gives the owner branding and goodwill: The copyright certificate gives way for producing and promoting their work and building a brand by the quality and goodwill established in the minds of the customers.
Protection from unauthorized usage: When a work is used or reproduced without the owner’s permission, this is known as copyright infringement, and the owner of the copyright is provided with legal protection from unauthorized use.
It offers import, export and exhibition: Copyright registration makes the import and export of works easy and the creator of artistic work can exhibit it to display or sell it.
It offers global protection: If the work of the author is registered and copyrighted in other countries then the owner of the work will have similar privileges as it is in India.
AUTHOR AND OWNERSHIP OF COPYRIGHT
The author is the person who has created the copyright. Ownership flows from authorship. The author has the moral right over the copyright and the owner can hold the economic rights. The term author is defined under section 2(d) of the Indian Copyright act, 1957. As per the copyright legislation, the author is the first owner of the copyright. Below mentioned table clearly defined the nature of the work and the name of the person who has done it:
|S.NO||NATURE OF WORK||NAME OF OWNER|
|1||Literary or dramatic work||Author|
|4||Photograph||The person who takes photographs|
|5||Cinematograph or sound recording||Producer|
|6||Computer generator work||A person who creates it|
WHAT DOES A COPYRIGHT PROTECT?
The author’s original work is protected by copyright when it is translated into expression. Section 13(1) of the act describes the types of work that can be copyrighted. As per the Indian Copyright Act section 13(1) of Chapter III, protection is given to the following works:
Other works which cannot be copyrighted include Ideas, Discoveries, Commonly known information, Principles, Short phrases, Names, Titles, Expressions, Methods, Choreographed works and so on.
TERM OF COPYRIGHT
|SECTIONS||NATURE OF COPYRIGHT||TERM OF COPYRIGHT|
|22||Literary, artistic, dramatic, musical work (joint author: who died at last)||Life of author + 60years|
|23||Anonymous and pseudonymous work(other than a photograph)||60 years|
|23(3)(1)(c)||Anonymous and pseudonymous work(joint author: who disclose or identify last)||Author lifetime + 60years|
|26||Cinematographic film||60 years|
|27||Sound recordings||60 years|
|28||Government work||60 years|
|28A||Public undertaking||60 years|
RIGHTS OF COPYRIGHT HOLDER
Reproduce the copyrighted work
Prepare new adaptations of the original copyrighted work
Right to perform the copyrighted work publicly
Right to distribute the copyrighted work
Right to make translations
Right to issue copies of the work
Right to communicate the work to the general public.
In simple words, trademarks are often referred to as a brand. Any word, name, symbol, or device used to identify and separate a good or service from those of another is known as a trademark. Trademark-related matters in India are now governed under the Trade Marks Act of 1999. According to 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.” For a variety of reasons, including the quality, quantity, period of time required for service delivery, and method of production of the goods and services that are provided by the company, a trademark is used to safeguard and protect the reputation, fame, and popularity of those goods or services. Trademarks help businesses to clearly distinguish their goods from competitors’ goods on the market. For instance, if Coca-Cola trademarks its name, logo, and formula, it will be easy to differentiate its product from the other competitors. The primary goal of a trademark is to ensure that the goods and services provided by a business are distinct from those provided by other businesses. Both trademarks and service marks are included under a single term “trademark.” A service mark is used for services, whereas a trademark is used for commodities and trade. Trademarks can be owned by individuals or companies and should be registered at the trademark office. A registered trademark is represented by R in a circle ®. Trademarks are generally approved for a period of 10 years and it is subjected to renewal.
CHARACTERISTICS OF TRADEMARK
A good trademark is one that the general public can pronounce and spell easily.
It should be distinctive.
It should not be too lengthy and complicated.
Should not be descriptive.
Should be able to distinguish the goods and services of one person from the other.
Should be catchy and appealing to the eyes.
Preferably an invented word.
Should satisfy the requirements of trademark registration
A trademark classification is generally known as the classification of goods and services. The primary goal of the classification of trademark products and services is to create a complete hierarchy of which trademarks fall under which categories. While following this method, it will be easy for the general public and the governing bodies to handle the classification of the trademark list at both national and international levels. There are a total of 45 classes out of which 34 are set out for products and 11 for services category. According to section 7 of the Indian trademarks act, 1999 the registrar is asked to classify the goods and services in accordance with the international classification of goods and services for the purpose of registration of a trademark. The international classification of goods and services is known as the Nice classification.
WHAT IS INCLUDED IN A TRADEMARK?
A trademark is a type of representation which is used by companies to distinguish the goods and services of one competitor from the other. There are various categories of trademarks which are used for business in the markets. Some of them are as follows:
WORD MARKS: Words marks are the most known types of trademark which can be registered both at national and international levels. Word marks claim the right to use the word alone, or letters or numbers. If the name of the product or service is in the textbase then it falls under the category of word marks. For example, the word nestle® is a registered trademark which comes under the category of a wordmark.
SERVICE MARKS: A mark that distinguishes the services of one individual from the other is known as a service mark. Generally, a service mark represents the service offered by a company or a business and will not represent the goods of the company. There are various services that are offered on the market and they can be registered under trademark classes 35 to 45. For example, FedEx is a registered courier delivery service provider.
CERTIFICATION MARKS: Certification marks are generally used to define standards. Businesses use certificate marks to let their customers know that the goods or services they offer adhere to certain standards. It is issued by a certifying organization or an institution and they make sure the mark issued by them meets the standards prescribed by them. Some examples of certificate marks include the hallmark issued for gold by the Bureau of Indian standards(BIS) and the ISI mark issued by the Bureau of Indian standards for industrial products.
COLLECTIVE MARKS: Collective marks are often associated with a group of people or organizations and not a single service or a product. These marks are generally owned by an organization, association or any institution. Collective marks are used to distinguish the products or services from the people outside the organization. They can be used by the members of the organization to showcase them as one of the parts. An example of collective marks CA which is exclusively used by the members of the Institute of Chartered Accountants of India
SHAPE MARKS: Shape marks are placed on products or packaging which help consumers distinguish one product from another. Shape marks fall under the category of an unconventional trademark. For example, the coca-cola bottle is able to be differentiated from the other brands on the basis of the shape of the bottle. Distinctive shapes can be registered under the shape mark.
SOUND MARKS: A sound mark is an unconventional trademark where the sound is used to distinguish the functions of the trademark. Sound marks are also capable of differentiating the goods and services of one business from the other. Popular sound marks include the Nokia tune, the lion roar of MGM and the Britannia industries bell sound.
DIFFERENCE BETWEEN TRADEMARK AND COPYRIGHT
Coming to the bottom line lets the summarize the distinctions between trademark and copyright as follows:
|DEFINITION||A copyright is a form of intellectual property that protects the original works of authors which are often fixed in a tangible medium. Copyright is a bundle of exclusive rights given to the author of the original work.||As per section 2(ZB) of the trademarks act 1999, a trademark means a mark which is capable of being represented graphically and capable of distinguishing the goods and services of one person from those of others and may include the shape of goods or their packing and combination of colors.|
|GOVERNING LAW||Copyrights in India are governed under the Indian copyrights act, 1957.||Trademarks in India are governed by the Indian trademarks act, 1999.|
|SUBJECT MATTER OF PROTECTION||Copyright includes literary, artistic, dramatic, musical, cinematographic films, sound recordings and photographs.||It includes words, phrases, letters, numbers, logos, devices, shapes, smell, colors and a combination of shapes.|
|BENEFITS||The copyright protects the original works of the author and it prevents the author from unauthorized users from being used, duplicated, reproduced, or sold.||The benefit of the trademark is that it prevents the business and the brand owner from the other competitors in order to distinguish their goods and services.|
|TERM PERIOD||In India, the duration of copyright is issued for a period of 60 years+ lifetime of the author.||Trademark registration is valid for a period of 10 years and it can be renewed again after the expiration of 10 years in order to protect the brand’s identity.|
|SYMBOL||The author of the work can use C in a circle to represent that his works are copyrighted in order to prevent unauthorized use. © this represents that the works are copyrighted.||The products or services which are registered will be denoted by R in a circle®. Whereas the symbol ™ will be used after filing the TM application to represent the unregistered trademark.|
|EXCLUSIVE IP RIGHTS||The copyright holder has the right to control the reproduction, distribution, translation and performance of the copyrighted work.||It offers an exclusive right to the trademark holder to prevent others from similar usage of the brand’s identity which may create confusion among the customers.|
|RECOGNITION||The copyrighted work helps the public to recognize the original works of the author.||Trademark registration helps the business and customers recognize the standard and quality of the brand.|
|EXAMPLES||A book written by Chetan bhagat is copyrighted and the songs composed by Anirudh are copyrighted.||Some of the most recognizable trademarks are coca-cola, McDonald’s, Pepsi, Its finger lickin good, Google, Facebook and so on.|
People’s awareness of intellectual property rights has increased significantly over time. Almost every business or company interacts and comes up with intellectual property rights and it should protect a company’s valuable assets. Intellectual property generally emanates from human creative labor. There are many branches of IPR which include Patent, Copyright, Trademark, Industrial design, Geographical indications, Trade secrets, Plant variations and Traditional knowledge. As discussed above trademarks and copyright plays a role in the minds of the people to identify the original work of the author and the brand of the business in order to prevent the customers from misconception. Copyrights and trademarks are generally used to protect intellectual property rights in different manners which are governed by two different Indian laws. Trademark helps the general public to identify the best standard of goods and services for the betterment of oneself whereas copyright helps the audience to identify and analyze the original works of the author. In conclusion, we can say that both copyright and trademark afford protection to two different aspects; trademarks provide protection for the business or company’s brand, name, logo, shape, color, smell, and symbol whereas copyright protects the original work of literary, artistic, musical, dramatic, sound recordings and cinematographic films.