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Written by : Denna Dugas
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hey what's up guys so in this video we're going to be breaking down the difference between copyrights and trademarks if you're not sure what the difference between them are this video is for you perhaps you're wondering if you should trademark or copyright your logo business name product line this video is going to answer the following questions one how are trademarks and copyrights different two what can be trademarked and what can be copyrighted and three how should you approach copyrights and trademarks and what should you think about in terms of project protecting your logo business name and branding now before we delve too deep into this topic let me just say that at the end of this video you will be able to choose what's best for you whether it's a copyright or trademark and i have individual copyright and trademark videos that walk you through them separately in way more detail so go ahead and earmark those videos so you can watch them later after you finish watching this one all right so let's get down to the nitty gritty what is a trademark anything that identifies the source of a good or service think about it in terms of where does it come from who made it where does it originate from for example if i showed you this would you know where this came from most of you guys knew as soon as you saw it what it was and i'm not even showing you the logo for this but you understand where the source of this box this fry box came from or if i showed you these and i said hey where do you guys think i got these from who made this versus if i showed you these and then it's kind of clear who made them where the source is for this and you'll notice i never showed you the logo for either of those goods but i'm sure that you knew where i got them from right that's the power of the trademark so it might be a logo it might be a color it might be a symbol but it gives the brand recognition right i always tell people to flip these words trademark and copyright so let's flip the word trademark it's the mark in the trade there are classes of trades that businesses will fall under so for example you might have a clothing footwear headyear versus services for food and drinks and you register your mark based on the applicable trade which means that a cell phone repair company called in and out is probably not going to infringe on a burger company called in and out two different trades right so now let's talk about what can be trademarked this is the fun stuff so i'm going to give you a small list um you have words logos symbols colors sounds smells slogans for a detailed list of what can be trademarked as well as examples of each be sure to download the trademark verse copyright 101 packet at the link below it's 100 free and it will help you to better understand how to approach protecting your own branded assets so that you can be confident when you go into the marketplace and start making that shmoney now something that's very distinct about trademarks and copyrights is how they're obtained trademarks are filed via an application they are not automatic now why would you trademark these things right you trademark to eliminate confusion in the marketplace because your brand represents a certain company culture set of values a guarantee of quality and cultural currency so to protect other companies from trying to use your branding on their items or to intentionally or accidentally cause confusion about the source of a good or service you create a trademark and that's basically to say look buddy you are trying to reap the benefits of my company's authority in the marketplace to make more sales that's not gonna fly uh say for example this box had a golden cue on it not going to fly right and it's to protect the consumer really trademarks are to make sure that when people purchase they're getting what they want or getting what they thought now if you guys found this video valuable hit the like button so i know to make more content just like this and don't forget to subscribe and hit the bell so you'll be notified when i post more videos all right now let's hop on over to copyright what is a copyright we're going to do the same thing we did with trademark flip the word write to copy reproduce alter use sell copies of perform or display the work or artistic expression this is about work product ownership think who maintains control as the rightful owner of this art trademark is about the source of goods and services and trademarks have to be filed copyrights do not have to be filed because they are automatically given to the artist or the creator of the work all right so let's break that down a little bit more the copyright is to protect the creator what can be copyrighted blogs all right so writers blogs video photos photographers music slogans songs to name a few this is not an exhaustive list if you guys want more of what can and cannot be copyrighted or trademarked be sure to get that download but let's walk you through a hypothetical you have a logo and you partner with an organization and maybe your logo is a lot like the mcdonald's golden arch it's always in gold and red this organization you partner with turns your logo pink for breast cancer awareness without your permission that's a copyright violation potentially and if you want to know the way around this be sure to watch to watch my copyright video in this series
Thanks for your comment Benito Helen, have a nice day.
- Denna Dugas, Staff Member
I'm very much happy to share with you some thoughts about the tensions between trademark and copyrights in the context of logos if we take the life cycle of a logo in practice and based on partly features example if you take the oil company well-known shell they had let's suppose only a war trademark and wishes to have an emblematic logo as well they contact a design agency to draw the sketches and within the agency one employee together with a consultant drove the first logo in in 1919 hundred and regularly as both of large multinationals they decided to revisit logo and to contact often new designers our new design agencies and there is the evolution of the logo of shell among the years all registered its trademarks and we'll see whether these logos are duly filed a trademark are nevertheless at risk so as we as we all know and I used the old Neumann rotation that that we changed as from the first of October for the for the sake of facility we all know that logos are protectable under the trademark so I won't go into the details in this respect and prima facie the filing of logo is quite streamlined and presents a lot of advantage if it's file its trademark first of all we have within the EU IPO availability search and there is a very useful database which enable any designer or company to make a search whether this logo already is registered and to the example of Instagram so if you combine that with the possibility of a position proceedings and the prima facie ex-ante control of the EU IPO based on the absolute grounds for refusal the risk of coexisting identical or pro matically similar logo protected by trademark is relatively low well we all know the caveat of the well-known Sibel case law but nevertheless prima facie there is a legal certainty once published you have a title which is very useful for example at fairs that you can enforce again infringers there is no time limitation and there is in principle no limited assignment issue since the trademark belongs to the person or entity who registered it but there are a lot of well flipped sides with respect to trademark filing it's a limited scope of protection because you only with respect to the exception of well-known mark can only challenge and dispute identical or similar product in similar classes there is a risk of delusion so you need to monitor the sign which is costly we spoke about the use of the trademark within the five years and the problematic of evergreening with respect to defensive trademarks and it should be within the course of trade with the notable exception of the Benelux convention where you can enforce trademarks even if it's not used in the court of trade registration is need no thematic protection and it's a territorial limitation country or region therefore the cross protection combined trademark and copyright is useful and very often not take into account by IP lawyers as if we go back to the logos of shell they are both protected by trademark but potentially as well by copyrights and pursuant to the EU CGA you case law any any kind of work of art which is a concrete form and which bear the stamps of its autre is a copyright protected material and there are the lot of advantage that you do not have within the trademark which is no need for registration the protection is ensure progressively throughout the creative process and not as from the registration there is no cost the protection is quasi universal through the Berne Convention 174 countries has ratified the Berne Convention and it protects all goods and services so no classes there is no pre cause of trade prerequisites contrary to trademarks and although trademarks are unlimited protected provided you pay the fees every 10 years and duration of protection with respect to copyright in 70 years after the deaths of the last outers so if you have a collaboration it's the last one that will count but there again there are converts especially with moral rights in most of the country it's the same duration of but for in France for example moral rights will survive ever and and so there is there is no statute of limitation with respect to moral rights in France but there is no database for availability search so you do not know whether someone else has designed a similar logo or artwork besides checking on Google but it's limited reliability on that and since there is a universal protection you're supposed to make a worldwide check everybody could at some stage and we will analyze an interesting case study with respect to logo of the International Olympic Committee a bit later but the thing is that contrary to trademark where you have ex-ante control by the EU PU and the national IP offices you do not have that we've copyright it's post ex posts check so you're not sure that your your logo will be considered to be copyright protected oh and the threshold for copyright protection is not harmonized within D U as we know in the Benelux countries the threshold is extremely low a bit higher in France but still always quite low but in Germany and Spain only iconic elements copyright protected especially with industrial design there are also with respect to the assignment of copyrights numerous differences for example in the example I gave at the beginning of my talks that the first logo of shell was conceived by one employee and one consultant in Belgium and France there is a presumption there is there is no presumption of assignment of the copyright to the employer unless it is with respect to copyright truly computer software directive but for normal copyright protected material there is no presumption of assignment in in most of the other countries and specifically Netherlands UK Ireland and Germany there is a presumption so again you have them to check what was specified in the employees contract of the designer that conceived the first shell and the next shell logos which means that possibly shell is not holding the copyrights on its own logo which could be then challenged we will see that if there are revisited because of a breach of moral rights so these things are are quite key and another disadvantage with respect to moral rights it's the way they can be transferred from the employer or the to the employer or to the client in UK and Ireland they cannot be transfer but they can be waived in Belgium they can be waived but it is not a general waiver that's possible and in France they cannot be waived which is a real issue because if we take the shell example here if if you start from from the last the last line it's obvious that all the five last designs are a revisiting of the previous one which is basically a breach of the moral right of integrity and if shell has concluded a contract with an agency as we know the moral rights remains within the natural physical person and not since they are not transferable which means that in the contract between the agency and shell the moral white could not be addressed unless you have kind of procurement terms or proxy order with the licensing of the defending and the exercise of the moral rights but this means that and on top of that the paternity rights wh
Thanks Florance your participation is very much appreciated
- Denna Dugas
About the author
I've studied power engineering at San Francisco State University in San Francisco and I am an expert in anthropology of media. I usually feel sad. My previous job was elementary school administrator I held this position for 2 years, I love talking about jukskei and ironing. Huge fan of Allison Stokke I practice cheerleading and collect toys.
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