Difference between trademark and copyright

Difference between Trademark and Copyright - an Indian Legal Perspective

Introduction to Trademarks:

Imagine you are entering a shop where all products are covered with white paper, there is no name on any product and they are all looking like exactly same. You will be absolutely confused as to what to buy, which product is manufactured by whom and which product has better quality Therein lies the importance of a Trademark. A trademark is a sign that tells you that a particular good / service comes from a particular source. It distinguishes the goods/services of one producer from that of the other and helps the prospective purchasers to make their selections based upon the reputation that the goods have acquired through their consistent performance. The interest of the public in not being deceived as to the source of goods has been called the basic purpose of the trademark.

(Goods in white cover)

(Goods with trademarks)

The Trademarks Act, 1999

The primary legislation governing Trademarks in India is the Trademarks Act 1999 (“the Act”) and Trademark Rules 2017. Section 2(zb) of the Act defines trademark as,

“a ‘trademark' means a mark which is capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others, and may include the shape of goods or their packaging and combinations of colours”.

Thus the following kinds of Trademarks are recognized under the Act:

1. Word Mark
2. Device Marks, Symbols
3. Shape of goods
4. Packaging of goods
5. Combination of colors

Some examples of Trademarks:

GOOGLE, FABINDIA, DOMINOS, DELL, NYKAA

(Red sole of shoe)

(Shape of Coca Cola bottle)

Purpose of Trademarks:

1. Source identifier: A trademark is a source identifier, i.e., it apprises the customers as to the source from which a particular good came.
2. Prevents confusion: Trademarks prevent confusion amongst the public at large as to the source of a particular good.
3. Prevents unfair competition: Since Trademark rights are in the nature of a monopoly of one entity over a mark, it prevents unauthorized use of the mark by other entities, and thus ensures that no unfair competition is created in the market.
4. Branding and Goodwill: Given the increased importance of branding and the tangible economic value of the brand in today's experience economy, trademarks have become more important than ever before. As consumers become loyal to a particular brand and make purchasing decisions based on their ability to identify a product or service by use of a logo, slogan, etc (i.e. trademark), these marks provide differentiation and competitive advantage to organisations. 

Registration Of Trademarks in India

Registration of a trademark is not compulsory.  However, registered trademarks stand at a higher footing as compared to unregistered marks in the ambit of protection they enjoy. Whereas registered trademarks enjoy statutory protection in India under the Trademarks Act, 1999, unregistered trademarks are protected by common law rights of passing off and unfair competition. Registration of a mark serves as a proof of the ownership of a mark.

Introduction to Copyright

If you post photos on Instagram, write emails, post videos on you tube, then you are a copyright holder. If you are playing Ed Sheeran’s songs at your restaurant, without his permission, you are technically a copyright infringer. Copyright is that branch of intellectual property rights which protects artistic, literary, dramatic, musical and the like works. The concept of related rights annexed to copyrights protects sound recordings, cinematograph films and performers.

Copyright is not a single right, it is a bundle of rights. In simplest terms, copyright is the right to copy, but it is not limited to that. It is also the right to perform, to translate, to make adaptations, derivative works etc.

Copyright protects expression and not ideas

The law of copyright does not protect ideas, it only protects the expression of those ideas. For example, an artist has an idea  to paint a sunset in the mountains with pink sky. Now he holds no copyright over this idea. Anyone can use this idea and paint a similar themed painting, but when the artist paints his painting and gives fixation to his ideas on a canvas, that is his expression of the idea and this expression is protected by Copyright.

Thus it is very important to understand that copyright only protects specific expressions and not the facts or the ideas that are conveyed by that expression. Different authors and different artists can convey the same idea in their own manner and style. This ensures that there are more versions of the same idea and people can choose the version which they find the best. Not protecting the ideas gives more space to people to pull from similar influences and participate in conversations over a set of ideas. It leaves more out in the open for everyone to use and build creatively upon.

Kinds of Works under the Copyright Act, 1957

1. Literary works like books, screenplays
2. Dramatic works
3. Artistic works
4. Cinematographic works
5. Sound recordings
6. Performers Rights

Rights of a copyright holder in India

As already stated above, Copyright is not a single right, rather it is a bundle of rights encompassing the following:

(i) Economic rights

Economic rights are the monetary rights annexed to a work including the right to reproduce, sell, let for hire, perform, broadcast or anything which will result in some financial gain to the owner. Economic rights are transferrable and can be sold, assigned, or licensed for a fixed sum or for royalties. For instance, a singer may assign the copyright in his song to a music label, which may further advertise and sell the song, and the singer might receive a single one-time payment for it.

(ii) Moral rights

Moral rights recognise that the creator of a work also has continuing interest in ensuring that his work is treated with respect, even after the economic interest in the copyright in transferred  to another. Moral rights are personal to the author of a work and may only transfer on his death. Moral rights further consist of two rights, that is the right to attribution, i.e., the right to be recognised as the author of the work, and the right to integrity of the work, i.e., the right to protect the work from any distortion or mutilation. Moral rights are not transferable and remain in the author even after he has transferred his economic rights.

Registration of Copyright in India 

Copyright in a work exists the moment the work is created. Registration of the Copyright is not mandatory. An author may get his work registered under the provisions of the Copyright Act, 1957.

Basic difference between Trademarks and Copyright

Trademarks and Copyrights are both intellectual property, a creation of the mind. The difference lies in the kind of asset they apply to.

Whereas trademarks protect assets that define the brand of a business, like a brand name, logo, layout and getup of a product; copyrights on the other hand protect artistic and literary creations like books, scripts, lyrics of a song etc. In certain areas, trademarks and copyrights may slightly overlap, for instance, a logo being an artistic creation may also be protected under copyright, and it may also be registered as a trademark.

While deciding which regime of protection to adopt, it must be seen as to what purpose the intellectual property is to serve. If an artistic creation is also acting as a source identifier, it is advisable to register the same as a trademark.

If no source identifying purpose is sought to be achieved, then it can be registered as a copyright.