Trademark vs Copyright

Trademark

Copyright
Purpose of Law
Trademark law protects consumers from confusion regarding the source or origin of products and services, and/or the affiliation of companies.		 Purpose of Law
Copyright law protects creators/authors from unauthorized copying, distribution & display of their original work, and prevents others from creating works based on the author’s original.
Rights Conferred
Owner has exclusive rights to prevent all others from using the same or similar mark as source identifier for the same or similar goods and services. Owner also has the right to prevent others from using its mark in a way that falsely implies endorsement, sponsorship or affiliation with owner of mark.		 Rights Conferred
Author (“creator”) has exclusive rights to do the following things with its original creative work:

  • Copy
  • Transfer
  • Display or Perform
  • Create derivative works based on original
Standard for Infringement
A likelihood of consumer confusion regarding the source or origin of products and/or the affiliation of companies. Eight factors are examined to determine if a likelihood of confusion (and therefore infringement) exists:

  1. Similarity of Plaintiff’s and Defendant’s good/services
  2. Relatedness of Plaintiff’s and Defendant’s goods and services
  3. Similarity of Plaintiff’s and Defendant’s channels of trade
  4. Strength and fame of prior mark
  5. Nature and extent of actual confusion or concurrent use without confusion
  6. The degree of care likely to be exercised by the purchaser in selecting type of goods/services offered under the mark
  7. Defendant’s intent in selecting its mark
  8. Likelihood of expansion of goods and services offered under each mark
 Standard for Infringement
UNAUTHORIZED exercise of exclusive rights.
3 elements:
Plaintiff’s ownership of valid copyright
Plaintiff’s access to the copyrighted work
Substantial similarity between infringing work & the protected creative expression in the original work.Substantial similarity is a 2-part test:
Extrinsic – subjective, similarity of ideas, including subject matter, setting, type of work, medium of work, materials used.
Intrinsic – objective, similarity of expression, ordinary reasonable person standard, total “look and fee” of protected expression.
Duration of Rights
Trademark law protects consumers from confusion regarding the source or origin of products and services, and/or the affiliation of companies.		 Duration of Rights

  1. For works created by an individual, life of the author + 70 years.
  2. For corporate authors, 120 years from the creation of an unpublished work, or 95 years from publication.
Purpose of Law
As long as the mark is used properly.		 Purpose of Law
Copyright law protects creators/authors from unauthorized copying, distribution & display of their original work, and prevents others from creating works based on the author’s original.