Copyright v Trademark: Whose Right Is It Anyway?

Copyright

The idea behind the "Copyright" concept was to provide the creators of certain kinds of material certain rights that allow them to control the way in which their materials can be used. These rights can be applied as soon as the material is recorded in writing or in any other way. However creators may encounter problems, as there is no official registration system for their creation, or concept.

What is protected by copyright?

Copyright protects original materials such as literary, dramatic, musical and artistic works, published editions of works, sound recordings, films and broadcasts. In many cases, the author will also have the right to be identified on their works and to object if their work is distorted or mutilated.

There is no need for the material to hold any, 'novelty', or 'aesthetic' value. All that is required is that the material has to be the result of an independent intellectual effort.

How can you protect your copyright?

Inherent legal right-Copyright protection in the UK is an automatic legal right. Copyright in a literary, dramatic, musical or artistic work (including a photograph) lasts until 70 years after the death of the author. In he case of protecting a film, copyright lasts 70 years after the death of the last to survive of the principal director, the authors of the screenplay and dialogue, and the composer of any music specially created for the film. Sound recordings are usually protected for 50 years from the year of publication. This is also true for Broadcasts, however published editions are protected for 25 years.

Keep original work as proof of originality-To ensure that you are given the best possible chance of proving your originality it would be considered wise to send a copy of your original work to a bank or your solicitor. It would also possible to mail a copy of your original work to yourself by special delivery (which gives a clear date stamp on the envelope), leaving the envelope unopened on its return. This could establish that the work existed at this time.

The © Mark-Although a few countries require that a work be marked with the international © mark followed by the name of the copyright owner and year of publication, this is not essential in most countries, including the UK. As the Internet is international, it will be wise to mark each page of the web site with the international © mark followed by the name of the copyright owner and year of publication.

Trade Mark

Unlike copyright, there is an official system for registration of trade mark governed by the UK Intellectual Property Office (previously known as the Patent Office).

Classifications of Goods & Services

It is important to explain at the outset that a trade mark application for your name, logo or slogan is made within a specified "class" or "classes" of goods & services. So, for example, if a business is in the textile industry, it may require a registration under the class for chemical compositions for treatment of textiles and also the class for the production of fabrics.

It is crucial to identify precisely all your current business areas as well as potential areas which you anticipate the business expanding into before making the trade mark application. This is because your trade mark will only be protected in the class(es) you register it in. Additional classes cannot be added at a later date and a fresh application has to be made. We will assist you in identifying the most appropriate classes for your application as part of our flat rate fee service.

What can you register?

You can register your business' name, logo and name and logo jointly. It is important to think about how you use your logo in the course of your business to establish the best way to protect it. If you have a very specific and permanent colour for your logo then it is advisable to register it in that specific colour. However, if the logo is used in a series of colours then a sensible option is to register it in black as then it will protect all colours.

Do you really own your logo?

It is very important that you ensure you own the copyright in your logo image prior to embarking on a trade mark application. If a third party designed your logo, the default position at law is that it is the designers who would own the copyright, even if you have paid for it. If you do not own the copyright it is essential you have this assigned to you by the designer using a specifically drafted but simple Assignment Agreement.

Problematic Words

The UK Intellectual Property Office will object to words which are unlikely to be seen as a trade mark by the public or which may be regarded as offensive. For example, marks, which simply describe your products, their purpose or their characteristics will not be accepted as no one, can have ownership over words that describe a process or an object.

So, for example, a company trading in food will not be permitted to register a trade mark for its name "Tasty Food" simply because the name describes the quality of their goods. (Joining the two words together would not make the mark acceptable either). A way around this situation is to consider including a prominent invented word, logo or picture in the mark. If such an inclusion stands out enough and is distinctive in relation to the goods, it may avoid the type of objection described above.

Are your name/logo/slogan protected?

To find out if it is and, if not, what can be done to protect it, please contact us either by email or by telephone on 08458 678 978.

At Acumen Business Law we do not charge for initial consultations.