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Written by : Kurt Kaywood
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welcome to lawpath's legal education videos my name is damon murdock i've been a lawyer for more than 10 years today we're talking about what is the difference between copyright and trademarks now to be able to answer that question you need to know what copyright is and you need to know what trademarks are so first we'll start off with what is a copyright copyright is artistic work in written form so that is it's a song it's a poem it's a movie it's a book it's software that you've developed it's the source code or the object code of your website and look and feel that is all copyright material and copyright material is protected by the copyrights act 1968 and in essence if someone was to infringe upon your copyright the way that you protect your copyright is you normally would send a seasoned assist letter saying the wording on your website is exactly the same as mine you're infringing upon my copyright or your software is identical to my software and you must have stolen it from us and the code must be exactly the same that is the first point of difference uh between copyright in a trademark is that you allege that you were the owner of it normally the defense will be well prove that you actually own it and that's the difficult part when it comes to proving that you actually own the copyright you'll be required to issue legal proceedings normally in the federal court of australia and you will claim that you're the one that wrote it you took that picture you drew that artwork whatever it might be you will then put a statement on saying this is mine it's original work it's artistic it's in print and it's owned by me and they've infringed upon it they've copied it and this is why it's similar and they have to copy it in substantial form for it to be copyright infringement now trademarks is limited normally to a logo or to a slogan or to certain words so you can trademark the word law path law path is could be trademarked in the sale of goods or it can be trademarked in the sale of services there's different classes that you can register with ip australia and iep australia registers trademarks they also do designs and patents as well and so what you would do is you would lodge the law path logo with ip australia in legal services and that would protect anybody else in legal services sorry that would protect you or protect law path from anybody else using that logo in legal services you can also use a slogan and you might opt for that slogan in business consulting and you might do business consulting in telecommunications so you would want to register your slogan in the class of business consulting and also in the class of telecommunications and the difference between a copyright and a trademark is once you've lodged and your trademark has been registered you are now at first instance the owner of that trademark whether it's a word whether it's a logo with a slogan and it's up to them to prove otherwise and for them to prove otherwise they would have to show either you've registered your trademark in bad faith for instance you registered coca-cola knowing that coca-cola simply forgot to register in a specific class and you don't trade as coca-cola at all and you just did it in bad faith so that they pay you out or you can do concurrent use where there's two companies using it the one company has been using it for five years but never registered a trademark so they can say well we've never registered a trademark but we've always been using it and therefore we should also be allowed to use that word in that class and that would be a concurrent use application but generally speaking it's very limited limited circumstances where you can defend about against a trademark infringement so the difference between a copyright and trademark copyright you got to prove your ownership you normally have to issue legal proceedings in the federal court whereas a trademark it's registered it's searchable you have a designated date when it's been registered and first to register generally wins without some exceptions and if there's a dispute you first try to resolve it with ip australia thank you very much for watching this video if you enjoyed this video please make sure you subscribe to our youtube channel and give us a thumbs up if you have any questions visit www.lawpath.com.edu thank you very much and i'll see you next time
Thanks for your comment Morton Secondo, have a nice day.
- Kurt Kaywood, Staff Member
hi i'm stan muller this is crash course intellectual property and today we're talking about trademarks trademarks are everywhere and they can often be confusing so today we're going to talk about why just about everything seems to be trademarked and why trademarks are good for business mr mueller trademarks don't intersect with my life so i really don't see why we need to cover this one it's mueller and two just watch the video a trademark is any word name symbol or device used to identify and distinguish goods from those manufactured or sold by others and to indicate the source of the goods even if that source is unknown this bit about unknown sources means that you as a consumer don't usually know the person or factory that actually made the goods you buy before the industrial revolution you often knew exactly who was making your stuff and how it was made if you wanted a hammer you went to the blacksmith and you knew his name it was probably smith these days brand names assure you that you're buying the same product say toilet paper that you bought last time you went shopping you know like the stuff with the ripples seriously though getting the wrong medication because of brand name confusion or counterfeiting could be disastrous the rationale for granting legal protection for trademarks is that they're a type of property it demonstrates to the purchasing public a standard of quality and embodies the goodwill and advertising investment of its owner in other words companies expend a tremendous amount of resources to develop the product market it to customers and provide customer support and back up their product with warranties at its core trademark law functions as a consumer protection measure it prevents consumer confusion and makes it easier for consumers to select and purchase the goods and services they want for example if you go shopping for a new television you don't have to sift through dozens of products that are confusingly similar to samsung knockoffs like samsung or wamsung or sony you want the samsung maybe based on past experience or the company's reputation or even a funny ad because the law protects the manufacturer's use of the trademark you can be reasonably sure that the tv you're picking up at best buy is the tv you saw the verge reporters freaking out about at ces though trademarks are often classified as intellectual property the supreme court held in the 1879 trademark cases that congress has no power to protect or regulate trademarks under the intellectual property clause of the constitution which as you'll recall provides congress with the authority to regulate and protect copyrights and patents but this didn't stop congress from regulating trademarks they used the commerce clause of the constitution which gives them the power to regulate commerce with foreign nations and among the several states and with the indian tribes beyond trademarks there are also service marks which are very similar in that they distinguish one particular service an example of a service mark is that roaring lion at the beginning of mgm movies it's registered for motion picture production or something trade dress or product packaging is protected if it's distinctive and non-functional like the shape of a nutter butter cookie is protected trade dress what they ought to trademark is the smell some people have registered smells and we'll get to that in a minute trademarks are symbols and since human beings might use as a symbol or device almost anything that is capable of carrying meaning just about any conceivable thing can function as a trademark trademarks can be words like craft or lego logos designs like the nike swoosh aromas like there's a brand of oil for race cars that smells like cherries sounds like bong bong bong or bada or bada papa even though is a registered trademark you can register colors like ups brown or home depot orange or tiffany blue or john deere green personal names like taylor swift t swizzy's name is registered for 61 different goods and services from shoes to christmas tree ornaments even containers like the coca-cola bottle or this perfume bottle shaped like a human skull can be registered in short they can be almost anything that distinguishes the product from others and which signifies the source of the goods despite the breadth of potential trademark subject matter there are some limits on what can be a valid trademark recently a restaurant in texas asserted trademark rights in the flavor of its pizza one of the restaurant's former employees allegedly stole the recipe and opened up a competing pizza joint selling pizzas that tasted a lot like those made by his former employer the judge rejected the claim and dismissed the case finding that it is unlikely that flavors can ever be inherently distinctive because they do not automatically suggest a product source also functional product features are not protectable under trademark law pizza has only one function that's to taste delicious so there are three requirements for trademarks we just discussed the first one that a trademark has to be a symbol or device that a court or the patent and trademark office deems to qualify the second requirement is that the mark has to be used in interstate commerce and the third is that it has to identify the mark owner's goods and distinguish them from those manufactured or sold by others it has to be distinctive let's talk about trademarks and what makes them distinctive in the thought window quartz rank trademark distinctiveness along a spectrum ranging from unprotectable to highly protectable at the bottom end of the spectrum is generic generic names refer to stuff like using the word orange for the fruit or dog for the canine or cheese for cheese descriptive terms simply describe the goods and convey an immediate idea of what the product is such as break and bake for scored cookie dough suggestive marks require some imagination or perception to link them to the goods like chic for middle eastern food or fruit loops for a circular fruit flavored breakfast cereal arbitrary marks are common words used in unexpected ways apple for computers or amazon for book sales or shelf for gasoline the most distinctive marks are usually made up words fanciful marks are non-dictionary words such as google for an internet search engine or clorox for bleach or kodak for film fanciful arbitrary and suggestive marks receive automatic protection upon use because they're considered to be inherently distinctive so the owner of the break and bake mark has to show that consumers identify the product with nabisco or pillsbury or whoever makes the product i honestly don't know who makes it which isn't a good sign as to whether it's acquired secondary meaning generic terms are never entitled to protection this becomes important when trademarks are gradually assimilated into the language as common names through a process sometimes called generocide the public comes to view such names as referring to the products themselves rather than as distinguishing the source of the products as a result the name loses its protection words like escalators cel
Thanks Talia your participation is very much appreciated
- Kurt Kaywood
About the author
I've studied speleology at Eastern Kentucky University in Richmond and I am an expert in philosophy of economics. I usually feel hopeful. My previous job was pathologist (md) I held this position for 17 years, I love talking about slot car and listen to music. Huge fan of Nina Dobrev I practice luge and collect bicycles.
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