How to Identify if a Quote Has Trade Mark Protection
Different forms of intellectual property protect different types of material. Generally, a trade mark protects the features that make up a business’ brand, whereas copyright protects original works. This article outlines the key differences between trade marks and copyright and explains how to identify whether either form of intellectual property protects a quote.
Trade Marks and Copyright: Key Differences
A registered trade mark provides its owner with the exclusive right to use, license and sell the trade mark in connection with particular goods or services. Under Australian trade mark law, a registered trade mark can protect the distinguishable features that make a business’ brand, such as a catchphrase, slogan or short phrases in the instance of a ‘quote’. For example, the instantly recognisable quote “I’m lovin’ it” is a trade mark by McDonald’s Asia Pacific.
On the other hand, copyright is a form of intellectual property protecting original works, ranging from literary works to artistic pieces. Owning the copyright to your original work means that you can prevent others from copying your original material without your permission. For example, copyright would protect a novel you have written. This means that generally, anyone who wishes to reproduce a substantial quote from your work would require your permission.
However, there are some exceptions to this general rule. Others can use your quote or a substantial passage from your work without seeking your permission for fair dealing purposes. These include using your material for the purpose of:
- study or research;
- review or criticism;
- parody; and
- reporting the news.
Nevertheless, Australian law recognises copyright owners’ ‘moral rights’, which should be recognised when others reproduce their work. Generally, these rights ensure that others credit you as the original author of the quote.
1. What Is the Nature of the Quote?
Since different forms of intellectual property protect different materials, the nature of the quote itself can reveal whether it is a trade mark or has copyright. If a quote is a slogan or catchphrase used to distinguish a brand, trade mark law can likely protect it. Since trade mark owners have the exclusive right to use their trade mark, you will require their permission to use it.
On the other hand, if you derive from an original literary work, it is likely protected by copyright law. For a quote to qualify as protected by copyright, it must be original. Here the word original does not necessarily mean that the author must exercise some special skill when writing the quote. Rather, the quote is original if you can attribute it to the author’s skill, labour or judgment.
2. What Symbol Does the Quote Use?
Another feature that can signify whether a quote is a trade mark or has copyright is the symbol it uses. A reserved symbol ‘®’ signifies that a registered trade mark protects the quote or slogan. If a trade mark has not yet been registered with IP Australia, it may be a common law trade mark or unregistered trade mark. These types of trade marks use the trade mark symbol ‘™’.
On the other hand, copyright protected material usually includes a copyright notice. A copyright notice usually includes these details:
- name of its creator;
- date the author created the original work; and
- copyright symbol ‘©’.
However, the fact that a quote does not bear a copyright notice does not necessarily mean that copyright does not protect the quote. In the instance where you wish to reproduce a quote, you should always seek the author’s permission before you do so. Without seeking the copyright owner’s permission, you would likely commit copyright infringement.
3. Have I Conducted a Trade Mark Search?
Another way to identify whether a quote is a trade mark is to conduct a trade mark search. Information regarding registered trade marks is publicly available on the Australian Trade Mark Search. A search can be as simple as entering the quote or the keywords of a quote into the Search to see if it has trade mark registration.
Unfortunately, there is no equivalent copyright registry in Australia to search whether a quote has copyright. This is because copyright law automatically applies to original works as soon as they are recorded or written down. If you are not sure whether a quote has copyright or not, it is best to presume that it is protected. Consequently, if you wish to reproduce the quote, you should seek the permission of the author to do so. Without permission from the copyright owner, you leave yourself open to committing copyright infringement.
If a quote represents a business’ brand, such as a catchphrase or a slogan, you can protect it with a registered trade mark. Registered trade marks are identifiable by their reserved symbol ‘®’, and you can find them on the Australian Trade Mark Search. On the other hand, if your quote is an original work derived from a novel or literary piece, it is likely protected by copyright. If you need help identifying a trade mark registered quote, our experienced trade mark lawyers can assist. Call us on 1300 657 423 or complete the form on this page.
Frequently Asked Questions
Generally, copyright protection in a literary work lasts for 70 years in addition to the duration of the author’s lifetime. However, this can change depending on the type of copyright material, whether it has been made public and whether the creator is known.
The minimum cost of a standard trade mark application is $250. However, this can change depending on how many classes of goods and services you include in your application. You can find a comprehensive breakdown of IP Australia’s application costs here.