Whether your business is small, medium, or large, there is no doubt that you have worked incredibly hard to develop your intellectual property, therefore it is important you know how to protect it from theft. Thankfully, by understanding how you can use trademark and copyright law to your advantage, you can ensure that your intellectual assets are safe from misuse.
For those new to intellectual property (IP) law, the difference between a trademark and copyright in the UK may not be immediately obvious, however, they both serve very different purposes. One difference is that trademarks must be registered, whereas, in the UK, there is no requirement to register a copyright. According to statistics published by the Intellectual Property Office (IPO), 107,527 trademark applications were filed in 2019.
In this article, we will explain the main differences between a trademark and copyright in the UK and how you can protect your personal or commercial interests from breaches of IP law.
What is a trademark?
A trademark is a form of intellectual property and covers recognisable signs, designs, or expressions that are used to identify a particular product or service. A very simple example of a trademark is the ‘Golden Arches’ used by McDonald’s, which is instantly recognisable all around the world as the brand’s symbol.
According to Section 1 of the Trade Marks Act 1994 (TMA 1994), a trademark refers to any ‘sign’ which is capable of:
- being represented in the register in a manner that enables the registrar and other competent authorities and the public to determine the clear and precise subject matter of the protection afforded to the proprietor, and
- distinguishing goods or services of one undertaking from those of other undertakings
Under the TMA 1994, trademarks may take any of the following forms in relation to goods or packaging:
- words / names
By registering your trademark, you can ensure that your brand and the reputation of your business are protected from harm by other parties. In order for your trademark to be successfully registered, you will need to satisfy a number of criteria, including that the mark is distinctive and is a single word, logo, picture or any mixture of these. It must also be different from previously registered trademarks and cannot be a common name or place name.
In the UK, the existence of trademark rights is typically indicated by using the initials ‘RTM’ and ‘TM’. ‘RTM’ means that a trademark is registered and is signified by the ® symbol. ‘TM’ is used where a mark (i.e. word/symbol) is being used as a trademark, but this is not yet registered.
What is trademark infringement?
A trademark is infringed when another person or business uses a registered trademark without the permission to do so. Trademark infringements may include:
- using the same mark as a registered trademark on the same type of goods or similar goods
- using a similar name, product design, packaging design, or logo as an already established brand
A recent example of trademark infringement is where a multi-national oat milk brand took a UK oat milk producer to court because of an alleged infringement of trademark law. They complained that the name and branding were too similar to its own. In this case, the High Court agreed and dismissed the claim of trademark infringement and ‘passing off’.
What is copyright?
- original literary work
- dramatic work
- musical work
- artistic work
- sound recordings
- broadcasts, and;
- the typographical arrangement of published editions
Section 153-156 of the CDPA 1988 provides that copyright only exists where the author is:
- a British citizen, a British Dependent Territories citizen, a British National (Overseas), a British Overseas citizen, a British subject or a British protected person within the meaning of the British Nationality Act 1981, or
- an individual domiciled or resident in the United Kingdom or in the Channel Islands, the Isle of Man or Gibraltar or in a country to which the relevant provisions of this Part extend, or
- a body incorporated under the law of a part of the United Kingdom, or the Channel Islands, the Isle of Man or Gibraltar or of a country to which the relevant provisions of this Part extend
Where copyright exists, the owner has the exclusive right to:
- copy the work
- issue copies of the work publicly
- rent or lend the work publicly
- perform, show or play the work publicly
- communicate the work publicly
- adaptation the work
Other criteria for the existence of copyright must also be met, including the country in which the work was first published and if the work is broadcast, where it was the first broadcast from.
What is copyright infringement?
Copyright infringement occurs when another party uses, copies, distributes, or otherwise uses work to which they are not entitled to do so. This may be in a physical or digital form. Some examples of copyright infringement may include:
- recording a film in a movie theatre and then creating copies for sale or to be shown publicly
- using copyrighted images gathered on the internet on a website
- too closely replicating existing works of art
- taking text from another website and using this without permission (misuse of images and text on the internet are among the most common forms of copyright infringement)
Trademark vs copyright
Trademark and copyright are forms of intellectual property intended to protect an owner’s interests in their property. The main difference is that a trademark protects the unique identification of a brand or product (e.g. the logo of a brand) and must be applied for, whereas copyright prevents copying, reproduction, or distribution of specific work (such as music, written words, performances, and films) and is gained automatically if certain criteria are met.
In practice, most established businesses will rely on both registering trademarks and copyright law to protect their intellectual property.
If you have a brand or work you need to protect, we recommend taking the following action:
- Review your existing IP protection strategy - including identifying which marks need to be registered and whether you have sufficient measures in place to detect breaches of any copyrights you own
- Keep an up to date catalogue/inventory of any trademarks and copyright which you own
- Put in place a dedicated team within your organisation whose role it is to oversee your IP protection strategy, and make changes and take action where necessary
- Check when any existing trademark or copyright protection expires (trademarks can be renewed after ten years, whereas copyright typically expires after 70 years and can be used by anyone after this time)
- Seek the advice of a specialist in commercial IP law who can advise on how best to protect your interests in terms of copyrights and trademarks
Get legal assistance from LawBite
- Transactional and contentious IP legal advice
- Working out what IP you own, when/how the IP was created and by whom
- Registering and protecting that IP, so other people can't use or steal it
- Advising on whether the launch of a new brand is viable and the name is cleared/free to use
- Making sure you are not at risk of infringing anyone else's IP
- Helping to protect and maximise the value of confidential information
- Helping you commercialise the value of that IP, including via licensing and assignment
- Negotiating instances of domain name disputes and cybersquatting
- Advising on the status of IP rights pre and post the Brexit transitional period
- Advising on IP in the context of corporate transactions
Additional useful information
- What can be patented and how to apply for a patent?
- Distinctiveness And Descriptiveness When Applying For a Trademark
- How To Apply For A Trademark
- Trademark Applications - 5 Tips to Get it Right
- How to Handle a Domain Name Dispute
- How to register a business name
- Bad Faith Trademarks In The Fashion Industry
- How to trademark a name for your business in the UK