Understanding the difference between a Trade Mark, a Copyright and a Patent
This is a very specialised area of the law.
In Australia individuals and companies can protect ideas, brands and inventions, often referred to as Intellectual Property (IP), by registering them. It is very important that you understand the difference between a Trade Mark, copyright and a patent so that your IP is properly protected and accepted for registration.
It is important that you know the different subject matter that each form of IP protection applies to, so that you can understand whether a Trade Mark, or copywriter or patent is the correct type of intellectual property protection that you should be applying for.
In summary, the difference between these forms of IP protection are as follows:
Trade Mark
A Trade Mark is a recognisable logo, sign, design, symbol, word and/or phrase (or a combination of these) that identifies the source of origin of particular goods and/or services. The purpose of a Trade Mark is to distinguish the goods and/or services supplied by your business from the goods and/or services supplied by competing businesses.
Ownership of a Trade Mark can be established in the following manner:
- At common law, by showing evidence that you have used of your Trade Mark in the marketplace; and
- By achieving registration of the Trade Mark with IP Australia.
Copyright
Copyright is the exclusive legal rights that are owned by the author of an original literary, dramatic, musical and/or artistic work.
The rights that are enjoyed by the owner of copyright in an original literary, dramatic, musical and/or artistic work include the exclusive right to:
- Reproduce the work in a material form;
- Publish the work;
- Perform the work in public;
- Communicate the work to the public;
- Make an adaptation of the work;
- Enter into a commercial rental arrangement in respect of the work reproduced in a sound recording; and
- For computer programs, enter into a commercial rental arrangement in respect of that program.
Copyright does not protect the ideas, information or concepts that are expressed in a literary, dramatic, musical and/or artistic work. Copyright only protects the work in which the ideas, information or concepts are expressed.
Copyright does not need to be registered with IP Australia in order to be valid and enforceable. The author of an original literary, dramatic, musical and/or artistic work will automatically own copyright in such work upon its creation.
Patent
A Patent gives a legally enforceable right to exercise exclusive commercial rights (a monopoly) over an invention for the applicable period of time. A patent must be registered with IP Australia in order to be valid. A patent can more particularly be registered in relation to inventions that are in the nature of a device, substance, method or process.
The rights that are enjoyed by the owner of a patent in respect of an invention include the exclusive right to:
- Stop others from manufacturing, using and/or selling the invention in Australia without the owner’s permission;
- Take legal action against others who are using the invention without permission; and
- Grant a license to others to manufacture the invention;
In order to be able to register a patent in respect of an invention, the relevant invention must be new, useful and inventive or innovative. In particular, a patent cannot be registered in relation to an invention that is obvious.