Copyright vs Trademark in Australian Law
One of the most valuable assets your business has is its intellectual property, also known as “IP”. As your enterprise becomes more well known in its industry and the broader marketplace, it is wise to protect its IP from copycats that would seek to piggyback on your growing brand recognition or to possibly steal proprietary information that gives your operation an edge over competitors. In each of these cases, there is an appropriate protection mechanism available in Australian law, known as trademark and copyright respectively. These two terms, although often used interchangeably, have substantially different purposes from one another. So in the same way that you not consult a telco lawyer for family law matters, the type of legal protection that you pursue must be tailored to the type of intellectual property in question. So let us look into what each IP protection tool does.
What is a trademark?
Trademark protection is applied to a sign that makes your business, products, and services distinct from that of your competitors. Such sign can be composed of letters, names, words, devices, signatures, labels, headings, and so on. The more of these elements are combined, the more unique a sign becomes and thus the easier it is to justify as unique. However, one must still be careful that any one elements within such a combination do not create confusion with existing signs in the marketplace that have been in use before and continue to be in the present. There have even been cases where companies have trademarked a single element, such as Cadbury having claimed sole rights to the color purple (Panatone 2685C to be exact) for 24 years. Finally in 2019 though, Cadbury lost an appeal that would have protected it 1995 trademark of this signature color, illustrating that even major enterprises are not immune from challenge when their chosen signs are not sufficiently distinct, through the combination of many unique elements. Trademarks then, are your main tool for helping to protect brand recognition achieved through unique presentation of your company via logo and other such identifying signs and symbolic elements.
What is copyright?
Copyright, on the other hand, provides protection for a specific work, such as those created by authors, artists, musicians, software developers and filmmakers. In other words, rather than securing a corporate identity, copyright focuses on protecting the products of an enterprise or individual. Such protection can even continue well beyond an individual’s passing but is only applicable when the creator has produced something substantially unique from comparable published works. Because it is conceivable that multiple people or companies could produce a similar product at a similar time, there is even recognition within Australian law of what is called ‘innocent infringement’. Therefore one must be careful to conduct a reasonable amount of inquiry and investigation of already existing works along the lines of what one intends to create or commercialize, as even innocent infringement may be prosecuted and is not a defense in itself. The good news though is that copyright protection may be had without actual registration in Australia, in that it immediately comes into effect as soon as a work is put into material form. It is still a good idea to somehow establish the date when that material form took shape, such as publicly publishing it.
Equipped with this knowledge of what roles trademarks and copyrights play, you can now take the necessary steps to proactively protect your intellectual property. Keep in mind that trademarks do require official registration and eventual approval, while copyrights are automatic in Australia. Proper use of copyright still requires effort however, in that a reasonable amount of research must be done to ensure uniqueness of a work before one publishes or exploits it. Thus informed, be sure to avail yourself of these mechanism in securing the value of your IP.