May 08, 2018
Let's imagine you are a creator, such as a writer, musician, graphic designer, artist, etc.; and you just come up with a one-of-a-kind product that has a great value in business and you want to protect it, so nobody else will use it as theirs, but you find yourself wondering: should I trademark or copyright it? How do I copyright or trademark my brand?
We know intellectual property can be a tricky field to understand, therefore in this post we will help you out to be clear about these two similar types of intellectual property protection, so you will decide which one is the right for you. Both trademark and copyright are forms of protection for intellectual property and each one has its own limitations and advantages that you need to know before beginning a registration process.
But first, what is intellectual property? For the World Intellectual Property Organization (WIPO), any invention of the human mind is considered part of the intellectual property. In other words, is all that is protected by the copyright laws, legally guaranteeing the creators' interests by offering them exclusive privileges in relation to their inventions, which can be literary and artistic works, symbols, names, images, drawings and models used in the world of commerce.
Now, let's understand each concept:
What is Trademark?A trademark is the group of distinctive signs that identify and distinguish certain product or service on the market, such as name, phrases, symbols, colors, sounds, slogans and logo, even the shape of the package, bottle, etc. A trademark owner can be an individual, business organization, or any legal entity and its symbol can be found on the package, a label or on the product itself. Trademarks are protected by intellectual property rights of each country and if you want to expand your brand abroad, you can make the international registration through the Madrid System. This is a treaty administered by the World Intellectual Property Organization (WIPO) and it is governed in accordance with two agreements: Madrid Agreement and the Madrid Protocol; countries and intergovernmental organizations adhered to them, conform the Madrid Union.
If you want to start the trademark registration of your brand, the first step is to make a trademark search to ensure that your company or product's name is not already in use, for this, we recommend you to hire a trademark attorney, that provides you with the knowledge and experience in trademark registration that will ease your experience while the process. Once you are sure your brand's name is unique you can proceed to make the trademark registration. While it is being processed you have to use the "TM" –for goods– or "SM" –for services– mark, and after the registration, you can use the ® or Registered sign.
What is Copyright?Copyright is a group of legal standards and principles that confirm the moral and patrimonial rights that the law grants to authors for the creation of a literary, artistic, musical, scientific or didactic work, published or unpublished, besides that, is one of the fundamental human rights included in the World Human Rights Declaration. Copyright is usually the first thing that businesses think of when they have made an item of intellectual property, to ensure no one else uses it. Copyright is quite similar to trademark, but at the same time its use is different, since it applies to original works of creativity, protecting the author's rights of the tangible form of an original creation, like a painting, a printed book, a play script, a song, poems, musical compositions, fabric works, articles and other intellectual works. As well as trademark, copyright should be registered to enforce the ownership and right to use intellectual property. Once a copyright process is done, the author holds the exclusive right to reproduce the original creation and derivative works.
There are some works that can't be copyrighted because of their nature, such as those that are not fixed in some tangible form like a speech that wasn't recorded or written, familiar symbols or designs, ideas, procedures, methods, systems, processes, concepts, principles or discoveries. Also, those works that are in the public domain and don't have original authorship, like historical facts, measures charts, and rules obtained from public documentation. The same happens in the case of titles, names, phrases, logos, slogans, etc.; which should be trademarked instead of copyrighted.
Which one to Choose?As lawyers, we know how confusing laws can be, even more, if we find two similar concepts, as the case of trademark and copyright. For this reason, we have collected some basics points to help you decide which one you should use to protect your goods or service' rights.
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