What is the Difference between Trademark and Copyright?
Two of the most frequently confused intellectual property rights are trademarks and copyrights.While they have both been created with a protective purpose, they are substantially different in the way they are used, in the way they function and in their essential ratio juris.
What is a Copyright?
As provided by Law 9.610/98 or Law 9.610, of February 1998 in Brazil and law No. 11.723 of September 28, 1933 in Argentina, copyright protects the rights of authors on their “original works of authorship”, that is, their intellectual work. This can consist in literary, artistic, dramatic, scientific, cinematographic and audiovisual works. Software too is considered worth of protection by copyright legislation, both in Brazil and in Argentina. Copyright gives the author exclusive moral and economic rights: the right to claim authorship of the work, to sell it, publish it, to reproduce it, display it and make derivative works of it. Economic protection is granted for 70 years after the death of the author, while moral protection never expires.
What is a Trademark?
Under Brazilian law, a trademark is a distinctive sign that can be represented graphically, or in other words, that is visually perceptible. On the contrary, the Argentine law makes use of a broader definition of trademark, not requiring the requisite of visual perception and admitting, for instance, scent marks. Trademarks are signs with a peculiar, distinctive character that identify and distinguish those particular goods and services and it is used to indicate the source of the goods and to distinguish them from other producers or competitors.
Ratio of copyrights and trademarks
It is easy to see that the reason for having trademarks is essentially different from the one for copyrights. A trademark is an easy, immediate way to identify a product or a producer. A well-known mark like Coca-Cola®, Walt Disney® or Gucci® has an intrinsic value because it is immediately recognizable by customers and has an incredibly strong economic value per se. Sometimes, the mark becomes even more important than the product: two companies may sell products, which are qualitatively identical, and just differ for the mark. Therefore, the trademarks are both a mean of protecting companies’ commercial interests and consumers’ interests: consumers are protected from confusion in the marketplace through an identifiable mark. Companies are protected from any competitor making use of a mark, which is identical or too similar and therefore may be misleading.
On the other hand, copyright protects a work from unauthorized reproduction but it doesn’t prevent someone else from taking some of the ideas expressed in the work and republishing them in their own words.
Copyrights are acquired as soon as the work has been created, without the need for registration, although the registration ensures legal certainty about the authorship, which would be difficult to prove otherwise. Trademarks have to be registered, although, both in Brazil and Argentina, some degree of protection is granted to de facto marks, especially when opposing third party registrations.
Copyrights and trademarks can also coexist: for instance, the Walt Disney® trademark identifies his animated movies and has become widely recognizable; at the same time, the movie itself, be it “Snow White” or “Cinderella” and the drawings that form it are protected by copyright, so any unauthorized reproduction of it is forbidden.