Should I Copyright or Trade Mark a Phrase?

Angus

• 29 June 2021
• 27 July 2021
• 4 min read

When you start a business, you have a lot of decisions to make. You might be thinking about what kind of product to sell, where to set up your business and how to hire employees. However, protecting your phrases, taglines and other elements you use to market your goods and services is often overlooked. You can protect your branding through a trade mark or copyright, but making that decision can be a tricky process. This article will explore some of the key considerations to make before deciding whether you need to copyright or trade mark a phrase.

What is Copyright?

Copyright is a way to indicate that you hold creators rights concerning a text, piece of music, software program, literary or artistic artworks that you create. Copyright is automatically applied to your works upon creation. It means that you, as the creator, have control over the use of your creations. You can stop third parties from using or copying your creations without your express permission.

Copyright only protects the creation itself. Copyright does not protect the intangible idea, style or conceptual techniques behind the creation. For example, if you have a great idea for a book, that will not be protected by copyright. However, if you write that book, the writing will be protected by copyright, and other people will not be able to copy the text.

It is important to remember that copyright is different from the property rights you may have concerning an object. This means that if you buy a textbook, you will generally not own the copyright of that textbook unless you have bought the copyright as well.

Copyright protection is automatic in Australia. You do not need to apply to obtain your copyright for your creation. This means that you have copyright protection when you put your work into a material form through, for example, writing, drawing, or recording. 

What Is a Trade Mark?

You can trade mark a phrase by registering it. Trade mark protection is not an automatic right like copyright protection. The key difference is that copyright is generally related to artistic or literary creations. In contrast, a trade mark relates to your branding and the phrases you use to represent yourself when trading. This means that if you would like to prevent competitors from using your branding, you will likely need to register it as a trade mark. Although you can technically protect your logo by copyright, you should also register the logo as a trade mark, so your enforcement rights are stronger.

You can lodge trade mark applications through IP Australia, where you will have to file your trade mark under a certain classification. The trade mark registration process is complex, so it may be wise to seek legal advice before beginning the process.

Should I Trade Mark or Copyright?

To trade mark your intellectual property, you need to take active steps. If your creation can satisfy the copyright laws, then your copyright protection will happen automatically. 

For example, if you write a book about a time-travelling politician from Mars, you will automatically be granted a copyright in the material that makes up that book. However, you will likely need to register a trade mark for the title ‘Politician From Mars’ or any branding logo you use with the book.

Key Takeaways

Before deciding whether you would like to either trade mark or copyright a phrase, you should consider if the phrase is:

• an artistic creation; or
• connected with your good or service in the marketplace.

If your phrase it is related to a good or service, then it is likely that you will need to file a trade mark application. However, if the phrase you create is an artistic piece, you will likely have automatic copyright protection.

If you have any questions about whether you should trade mark or copyright a phrase, contact our experienced trade mark lawyers on 1300 657 423 or fill out the form on this page.

Frequently Asked Questions