When you Google “Copyrights” and “Trade Marks”, many articles will tell you: –
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What is copyright?
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What is a trademark?
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What are the similarities between trademarks and copyrights?
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What are the differences between trademarks and copyrights?
Since we ply our trade on trademarks, we see things from another perspective, and in this article, we will focus on how copyright law is related to trademark registrations.
Inevitably, we have to start with a few relevant concepts of copyrights for warm-up: –
concepts of copyrights for warm-up
(a) Copyright protects the creation of original works.
(b) There is no requirement for registration. Copyright is an automatic right.
(c) Copyright does not require the work to be very beautiful or creative. Only a minimum threshold is required.
Is copyright subsisted in every trademark?
This is somewhat a tricky question!
The answer is of course a big “No”! Just consider the “Apple” branded mobile phones, and you can only agree with me that the word “Apple” COULD NOT be an original work created by Steve Jobs or his team! Even a self-coined mark such as “Trasomark” Word Mark unlikely qualifies as a copyrighted work. While the threshold of creativity is the only bare minimum, a mark consisting of one or two words does not meet the basic threshold.
You may then ask – what kinds of trademarks will also potentially be protected by copyrights? Short answers will be, for example: –
(a) Logo Mark (the designing features are very likely protectable under copyright laws)
(b) Slogan with more than a few words (the longer the better)
(c) Sound Mark with more than a few notes (the longer the better)
Of course, if such marks are not original creations but copying others’ works, they can never be copyrighted work.
Who Owns the Copyright Subsisted in your own Trade Mark?
This question is rather philosophical! When I own a trademark, isn’t that I also own the copyright subsisted in my trademark? Well, that may not always be the case, and we will go back to the creation history and process of the mark to determine the ownership.
Let’s say you are good at drawings and created a Logo Mark yourself for your company. You then file the Logo Mark in the name of your company. Under the trademark laws, the Logo Mark of course belongs to your company. However, since the Logo Mark is created by you, unless you were already an employee of your company at the time of the creation of the Logo Mark, the copyright of the Logo Mark should belong to you in person (but not your company).
In another case, you asked your in-house designer to create a Logo Mark. In most jurisdictions, the copyright of works created by the employees shall automatically go to the company. So, this time, we got a union of copyright and trademark ownership with the company.
In the third case, which is a more-than-common scenario, you engage a designer to create a Logo Mark. You commissioned the workout and paid accordingly. However, in most jurisdictions, in the absence of agreement, the copyright of the created works, namely the Logo Mark, will belong to the designer.
Take Away Tips!
For trademark filings, you should therefore pay attention to the following for sake of protection of copyright: –
1. Always preserve the evidence of the creation process of your trademark, regardless of who creates it. As said, there is no requirement of registration on copyright, hence it is a good habit to keep track of the creation process to establish ownership.
2. If you engage a designer for the creation of your Logo Mark, please always ask (preferably at the very beginning of engagement) the designer to sign a simple contract to assign the copyright of Logo Mark back to you.
3. Please appreciate that copyright could sometimes be very vital to your trademark protection. For example, when someone copies your unregistered mark, or that your registered trademark did not cover certain class(es), copyright will give you an extra weapon for tackling trademark infringement, bearing in mind, however, that copyright is typically a weaker right than a trademark. Come to Trasomark for Tailor-made Advice!
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