Difference between Trademark, Copyright and Patent: IP Eco System

Corporate Law & Intellectual Property Rights | By Editor | Last updated on Oct 5, 2017

By Ashrujit Basu

‘Rembrandts In Attic’ written by two fellow Intellectual Property Strategist named Kevin G Rivette and David Kline, when first published in the year of 2000 impacted many Billion Dollar companies such as Microsoft and IBM as these companies adopted IP as a tool for business growth rather than just a legal protection.

But even they were confused about how to segregate different portfolios for different categories of IP. Still today most of the entrepreneurs are stuck in a dilemma on what type protection to opt for.

Therefore, we are trying to draw a clear distinctive line between multiple branches under the umbrella of Intellectual Property Rights.

Trademark vs. Copyright:

Trademark is the protection of the visual projection of your brand philosophy/mark whereas copyright secures the expression of ideas and artistic dimension. A copyright able instrument/article may or may not be for projecting your Brand image. But Trademark or Servicemark is a Mark which will be highlighting brand image which may comprise of Image, graphics, designs, patterns, captions etc. Although all these elements are also Copyright able but first they will be considered as Trademark as they are reflecting a Brand only.

A noteworthy feature of copyright is that any type of literary work such as sound recordings, paintings and art works, and cinematographic work can be copyrighted. Any creator may claim copyright without applying for the certification from concern Government Copyright Offices. Therefore, certification for copyright is not mandatory but requires for proving the ownership over any creative work in the court of law. However, trademark should be certified by the concern IP office as per the uniqueness or Novelty of the Mark.

Trademark should always be distinctive in nature. A Trademarked logo can’t resemblance with similar other mark. But in case of copyright it’s not mandatory to be completely distinctive as copyright protects ‘rights’ over republications subject to the fact ‘No Objection Certificate’ is obtained from the publisher or owner of the first copyrighted work.

‘Proof of existence’ is an essence of Copyright but for Trademark, Registration and approval from the competent authority validates its existence. If copyrighted work is available in the public domain that from the very first date of its creation then even without any registration ownership proof can be validated.

Now a new tech and few startups are working on validating copyrighted work based on the above thesis. A new tech known as Blockchain is responsible for creating a auto submission platform by offering a decentralized network place where copyright owner can submit his work and that would be recorded without any chances of tempering with his original submission. This type of tech based proof of existence might be considered as valid Proof of Ownership in the Court of Law, in case of any Copyright infringement. However, this legal status is yet to be validated.

Trademark certifies a brand to market its product without fear of infringement for a standard period of 10 years only. However, copyright protections are for life time of the creator or 60 years after the death of the author.

When & Why to ‘PATENT’:

Most of the time questions like “Software is Patentable or Copyrightable? Is idea patentable? ” confuse our mind. So for understanding and getting a clear perception for answering those questions, we need to understand What Is Not Patentable in India;

According to Section-3 of Indian patent act-1970. The following inventions are not patentable-

(a) obvious to natural laws

(b) cause damage to health of any living being

(d) new form of known substance with no significant improvement in efficiency

(e) mixture of two substances resulting in new substance

(f) obvious way of re-arranging things

(g) agricultural or horticultural methods

(i) any treatment for curing a disease of living beings.

(j) plants and animals, biological processes

(k) software, business methods or algorithms

(l) any copyrighted content

(m) any method of performing mental act or method of playing game

(n) a presentation of information

(o) topography of integrated circuits

So in order to answer above mentioned confusing questions like Softwares and Business ideas are patentable or not, just have a look at Sec. 3 [k] which says software, Business methods ( ideas ) or computer programming algorithm are not PATENTABLE.

However, Software programming codes can be copyrighted in India. This is because it can be considered as literary work.

Therefore, only a genuine invention which is novel and first of its kind having wide industrial applicability can be treated as a valid patent subject to grant of patent right by patent office. Unlike copyright, patent doesn’t enjoy automatic rights even without being registered. Neither it enjoys benefits under Passing Off doctrine like Trademark which safeguard unregistered Marks from infringements those are not registered mark but have acquired Goodwill in the past.

So, these are the things which help us to categorize in between Trademark, Copyright and Patent.

In the next series will discuss differences in between Patent and Industrial Designs and Trademark and Geographical indications and Copyright with Trade Secret protection.

Get the trademark done NOW.

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