COPYRIGHT INFRINGEMENT VS. TRADEMARK INFRINGEMENT: WHAT YOU MUST KNOW?
At its root, infringing on a company’s intellectual property is both destructive and ethically unethical. Copyright and/or trademark infringement may have a long-term impact on a company’s reputation, primarily when the misrepresentation of a brand is directly related to safety and health risks. As creators of all types – designers, authors, and others – we have a responsibility to comprehend infringement, recognize warning indicators, and prevent perpetuating such objectives.
In this article, we’ll go through what constitutes copyright and trademark infringement. If you want to understand the many types of intellectual property better, check out our prior post.
WHAT IS COPYRIGHT?
Copyright infringement is likely more known to you than trademark infringement because the former covers substantial creative works such as art, cinema, books, theatre, music, records, and more.
You have the right to distribute or create copies of creative works like those stated above if you have a copyright. It’s how you can purchase paintings at furniture stores; you can get Disney stuff at Target. (Keep in mind that conceptions aren’t covered by copyright, so your short film about a water sofa is only protected in terms of what you do, not the idea.)
When you create anything, you instantly own the copyright to it, as well as the capacity to share it publicly.
INFRINGEMENT ON A COPYRIGHT
According to this logic, unlawful distribution or profit gained from someone else’s work without consent is directly related to copyright infringement. A license or assignment allows you to provide authorization for someone else to utilize your work.
When it comes to “fair use” and “derivatives” of creative work, these are considered to be exceptions:
- Fair use is when you replicate an existing work for “transformative” purposes, like criticism or satire. There is no firm line in the sand to determine what is and isn’t fair usage because it varies from court case to court case.
- Translations, altered music, art reproductions, abridgements, and other derivative works are new works based on previously existing items.
TRADEMARKS (TM AND ®): WHAT YOU NEED TO KNOW
Before we go any further, it’s crucial to understand the distinction between TM and ®. The TM sign is used by businesses that have not yet registered their trademark name with the United States Patent and Trademark Office (USPTO) or have registered but are awaiting approval. The ® sign indicates that a trademark has been registered with the USPTO. It gives brand protection as well as the potential to “demand triple damages against infringers.”
The primary distinction between copyrights and trademarks is that the latter pertains to words, symbols, and colors connected with your brand. So, although copyright protects the dissemination of your creative works, trademarks protect the relationship between your logo and your brand — its distinctiveness.
You must apply for a trademark; it is not granted to you immediately. This procedure might take months, but once formed, it never has to expire as long as you renew.
INFRINGEMENT ON A TRADEMARK
Trademark infringement, like copyright infringement, has legal ramifications if violated. It is, however, more brand and business-centric than copyright because it is based on someone’s capacity to associate a brand with a product or service. Is it possible for a logo or brand to mislead the ordinary customer and cause them to link it with another? If this is the case, you are infringing. For Instance, If a brand is already well-known, such as Coca-Cola, consumers are unlikely to confuse it with a knockoff brand called “Koka-kola” or something like that. On the other hand, famous companies are concerned about another type of infringement known as “dilution,” which occurs when another party starts using someone else’s trademarked term to refer to something unrelated – such as “Koka-kola breakfast cereal.” Associating this brand with morning cereal might “dilute” the strong relationship in people’s minds between “Coca-Cola” and soda, which would be deemed trademark infringement.
Is your brand getting devalued? If you use a trademarked term and tie it to anything random, you’re also risking infringement. For example, if you took a Starbucks knockoff and renamed it “Starbux gym,” it interferes with the relationship between Starbucks and coffee and harms the company’s brand. Another example, in 2002, the lingerie brand Victoria’s Secret sued Victor’s Secret, a tiny sex store in Kentucky. There was no danger of anybody mixing the two, but Victoria’s Secret argued that linking their name with sex toys harmed their underwear brand, and they won.
KNOW YOUR INFRINGEMENTS
When it comes to infringing on a brand’s intellectual property, it’s a dangerous path. While it might be challenging to determine in some instances, it is always advisable to take a little bit of caution. If you have any doubts, get the advice of an expert IP attorney or legal counsel before proceeding.
WHY CHOOSE HHS LAWYERS AND LEGAL CONSULTANTS
Trademark experts like HHS Lawyers and Legal Consultants provides IP enforcement services to valued clients. Intellectual property attorney has extensive experience prosecuting intellectual property infringement lawsuits. Trademark representatives are knowledgeable and experienced and can facilitate you with the following:
1. Pursuing an action for intellectual property infringement in advance of the lawsuit by drafting cease and desist letters or legal notices.
2. Any concerns about the validity or infringement of third-party intellectual property.
3. Resolving your disagreement with the other party amicably and without resorting to litigation.