Should I Copyright or Trade Mark My Logo?
Angus
When beginning your business to sell a good or service, there are many decisions to make. You will need to name your business, set up a store, and design and sell products. However, a step that often gets overlooked is ensuring adequate protection to your intellectual property, including your logo. When deciding the best way to protect your logo, there are two options available: copyright protection and trade mark protection. This article will explore some of the key considerations to make before deciding whether you need to copyright or trade mark your logo.
What Is a Trade Mark?
A trade mark formally protects your intellectual property. To protect your logo, you must first register it with IP Australia as a trade mark. Trade mark protection is fairly straightforward, but can sometimes be tricky. For example, you will need to pick the correct classification and type of trade mark application you would like to make.
Also, by having a registered trade mark, you can enforce your rights to its exclusive use and prevent others from using your intellectual property without your permission. For example, suppose you create a new logo that you use to sell energy drinks. In this case, it would be wise to trade mark that logo to prevent competitors from using it and taking advantage of your business’ reputation.
What Is Copyright?
Copyright is an automatic right granted to creators upon the creation of a new piece of artistic work. These works can include, but are not limited to:
- music;
- literary work;
- artwork;
- choreography; or
- software programs.
Depending on your logo, it may fall within the artwork category and receive automatic copyright protection. Holding the copyright in your logo allows you to maintain control regarding the use of your creation. This means that you can license other people to use it, prevent other people from exploiting your logo or sell your logo to others.
However, copyright only protects the creation itself. It does not protect the abstract idea behind the creation. For example, suppose you write a movie script about an intergalactic space romance. Copyright laws will automatically protect the script itself. However, the general narrative of the script will not have copyright protection. You would also likely have to trade mark the film’s name to protect it.
Additionally, copyright is separate from property ownership. While you may physically own a CD or book, you will not own the copyright in the CD or book unless you purchase the copyright as well.
Due to copyright laws in Australia, copyright protection in Australia is automatically created. As soon as you put your creation in material form, you will have copyright protection.
Should I Trade Mark or Copyright?
Generally, you will be better off registering your logo as a trade mark. However, if your logo is your own artistic creation, you may automatically receive copyright. It is important to recognise that depending on the agreement you have with the graphic designer who creates your logo, they might hold the copyright instead of you.
For example, suppose you hire a graphic designer to create a new logo for your beer company, and you do not agree in advance to transfer the copyright of the design. In that case, the graphic designer will likely hold the copyright and will be able to sell your logo to other businesses. You can prevent this by ensuring you transfer the copyright and by subsequently applying for a trade mark for your logo.
Key Takeaways
Before deciding whether you would like to either trade mark or copyright a logo, you should consider whether the logo is:
- your own artistic creation; or
- connected with your good or service in the marketplace and is not inherently artistic.
If your logo is related to a good or service and is not inherently artistic, it is best practice to lodge a trade mark application to obtain protection. Alternatively, if the logo you have created is inherently artistic, you will likely already have copyright protection on that creation.
For more questions on applying for a trade mark for your logo, contact our experienced IP lawyers on 1300 657 423.
Frequently Asked Questions
Copyright protection in Australia is granted automatically.
First, you must submit your completed application form to IP Australia. Next, wait for IP Australia to either approve the application or ask for more information.
Generally, if a book you wrote is artistic and your own work, it will have automatic copyright protection.