There is often confusion about the differences between trade marks, patents and copyright. This is no surprise as the law in this area is quite complex and very conceptual. This post provides a brief overview of the differences. But firstly, let’s start with the similarities.
The reason that trade marks, copyright and patents are often mixed up is that they are all versions of intellectual property. Intellectual property, or IP, can be roughly described as legal protection for creations of the mind. Each form of IP provides its owner the exclusive right to use, copy or exploit the particular IP. However, despite what many people think, “ideas” are not protected by any form of IP. It is only the expression of the idea that can be protected. To use an oft cited example, you can’t patent the idea of travelling to the moon, but you can patent the rocket to get you there. Putting this in a copyright context, you can’t copyright the idea of proposing marriage in the Eiffel Tower, but you can copyright a song about that event (but someone else can write a different song about the same event). So in a nutshell that’s how trade marks, copyright and patents are similar; now let’s consider their differences.
Broadly speaking, a trade mark is the legal protection in your name or logo. It’s the mark to signify it’s your trade. The best and surest way to do this is with a trade mark registration. With a registered trade mark you can legally stop other people and traders from using your mark, or any similar marks, without your consent, in relation to the goods and services for which you chose to register your trade mark. In Australia, trade mark registration is valid for 10 years and can be renewed every 10 years in perpetuity. A trade mark can also exist without registration, and these are sometimes referred to as “common law” trade marks. However, the protection they provide is very narrow, often being limited to only preventing virtually identical trade marks used in relation to the exact same goods or services.
Copyright is the exclusive legal right to “copy” a particular type of thing covered under the Copyright Act 1968. The types of works covered by the Act includes books, plays, songs, lyrics, computer programs, images, speeches, poems, photos, art works, music recordings and broadcasts. The exclusive rights usually include the rights of reproduction, adaptation, and communication to the public. Copyright is automatic from the moment the creation is put into material form (ie. written down, recorded), and there is no system of registration. As with all IP, copyright only protects the way an idea is expressed, not the idea itself.
A patent provides the owner with an exclusive right to exploit an invention. Specifically, it allows the owner to prevent others from making, using or selling that invention for a period of 20 years. A patent can be granted over any device, substance, method or process as long as it’s new, inventive and useful. There are some things that are not patentable such as ideas, schemes, artistic creations, mathematical models and mental processes. The patent system is a rights by registration system, meaning that to have patent protection you must register for it. Registration is often difficult and expensive as each application is assessed by the relevant government body to ensure it is “new” and “inventive”. For this reason, it is imperative that you not publicize your invention prior to seeking protection. Furthermore, you must apply in each country in which you want protection.