Erin Kasner-Remer

Trademark…patent…copyright – what the heck is the difference?

This article explains the differences between copyright, trademarks, and patents and will help you understand how to best protect your ideas and creations. 

Trademarks, patents, and copyright are types of intellectual property. The term intellectual property describes intangible assets such as creations and inventions of the mind. Some examples of creations of the mind include artwork, inventions, designs and symbols. These intangible assets have value and need protection, like tangible assets. Trademarks, patents, and copyright each protect different kinds of creations and come with their own set of legal rights. 

This article will explain the differences between copyright, trademarks, and patents and will help you understand how to best protect your ideas and creations. 

Copyright 

Copyright means the right to produce, reproduce, perform, or publish an original work or a substantial part of an original work. Canada’s Copyright Act protects original literary, dramatic, musical, and artistic work from infringement. This means that if you create an original work, you own the copyright to the work and no one else can produce, reproduce, perform, or publish it without your permission. 

What is protected by copyright?

All original creative works are subject to copyright. This includes paintings, sculptures, songs, poems, novels, and even computer programs. 

Note that copyright only applies to original works – if you purchase a painting, you do not get copyright ownership. Similarly, if you pay someone to create something for you, you do not automatically own the copyright. The best way to ensure you own the copyright in a work is to enter a contract with the creator and have the copyright assigned to you. 

Copyright registration 

Copyright is unique because artists and authors do not have to register their work to protect it. An original work is automatically protected by copyright law once it’s created. However, registering a work with the Canadian Intellectual Property Office is likely beneficial where an artist needs to prove their copyright ownership. First, copyright registration can be used as evidence in court to determine that copyright exists and that you are the true owner of the work. Second, individuals can try to lessen the penalty for copyright infringement on unregistered works by claiming they were unaware of any copyright in the work. But, individuals cannot make this claim for registered works. To summarize, registering copyright ensures the artist is recognized as the owner of the work and reduces the harm caused by someone trying to copy the artist’s work.

Copyright in different countries:

Canada has signed a treaty called the Berne Convention, which deals with copyright protection for artists, authors, and creators. Original work is subject to copyright in all other countries who signed the treaty. Copyright can still be registered in countries that did not sign the treaty.

How long does copyright last?

Copyright protection lasts a lifetime and then for 50 years after the artist’s death. If the artist’s identity is anonymous, copyright in an unpublished work will last for 75 years after the work is created. However, if the unknown author’s work is published before the copyright expires, copyright lasts for 75 years after the work is published or for 100 years after the work was created—whichever date is earlier.

Patents 

Patents protect inventions by providing inventors with exclusive rights to make, use and sell their invention. Patents simultaneously promote innovation and research because people are more likely to create or improve products and designs if they can generate profit from them.

What can be patented?

Any invention that is new, useful, and innovative can be patented. In this case, ‘new’ means something that has not been done before or used in a specific way ‘useful’ means the invention has a practical function, and ‘innovative’ means a new development or non-obvious improvement of a development. Some examples of patents include fitness watches, beauty product recipes, and even plants. 

How do you obtain patent protection?

Unlike with copyright and trademarks, inventors must apply for and be granted a patent to protect and own their invention. A patent application should include an abstract, description, claims, and drawings. The abstract describes the invention and how it can be used. The description should explain how to use or manufacture the invention in clear terms so that any person could use or make it. The claims define the specific subject matter of the invention for which you are asserting exclusive use. Drawings must be submitted to clearly illustrate the invention.

Why should you apply for a patent? 

If you do not submit a patent application, your invention will not be protected. Without a patent, you will not have the exclusive rights to make, use or sell your invention. It’s important to apply for a patent as soon as possible because someone else could be thinking of or working on the same invention. Whoever files the patent first will obtain protection. Therefore, you want to make sure you’re the first one to file an application – especially if you think your invention is profitable.

Another benefit of patent protection is that you can sue individuals for patent infringement. Having a patent allows you to prevent other people from making, using, or selling your invention without your permission.  

How long does patent protection last?

Patent protection lasts 20 years in Canada. 

Where should you apply for a patent?

You should apply for a patent in each country you wish to have patent protection. Applying for a patent in Canada does not prevent people from other countries, such as the United States, from using and making your invention. For example, if you have a patented skin care product in Canada that is in demand, you will likely want to apply for a patent in other jurisdictions so third parties in those jurisdictions cannot copy your product and profit. You can apply directly to other countries’ patent offices or through the Patent Cooperation Treaty (PCT), which contains 152 member countries. The benefit to applying under the PCT is that you can file a single patent application for protection in any of the member countries instead of filing several separate applications.

Trademarks 

A trademark is a sign, brand, or symbol that is used to distinguish a person’s or company’s goods and services from others. It can be a combination of letters, words, sounds, colours, designs and more.  Trademarks can even represent a company’s reputation. For example, think about Apple’s logo – although it is simple, people know that products with that logo are created by Apple. That logo is one of Apple’s trademarks and its purpose is to help consumers recognize Apple products. If consumers trust and enjoy Apple products, they can also associate the apple logo and brand with high quality. 

Do trademarks need to be registered?

No, they do not need to be registered, like copyright. However, if you don’t register your trademark, you won’t have the exclusive rights to it.  Unregistered trademarks have limited protection – they are only protected under common law if they have sufficient recognition, which is costly to prove. This is contrary to copyright in which you would still own the copyright to your unregistered creation. 

Benefits of registering a trademark

Although registering a trademark is not necessary, registration is beneficial because it can be used as evidence to prove who owns the trademark. The owner of the trademark has the right to its exclusive use throughout Canada. To have protection in other countries, you have to register your trademark with them. For example, to have trademark rights in the United States, you must  register your trademark with the United States Patent and Trademark Office. 

Owning a registered trademark is also beneficial because the owner has the right to a cause of action if a third party uses a trademark to sell the same goods or services, creates a trademark that causes confusion with the registered trademark, or uses a trademark that negatively affects the value of a registered trademark’s goodwill. To better explain this benefit, think about Apple’s logo again. Imagine another company that sells laptops created a logo that looks just like Apple’s logo but it’s blue and slightly wider. This would certainly cause confusion because two brands with Apple logos would both be selling laptops. Because Apple’s trademark is registered, it can demonstrate that it owns the trademark and therefore has the exclusive right to the logo. This other company’s similar logo would confuse consumers and is therefore an infringement. 

Like with patents, it’s best to register a trademark as soon as possible – before someone else registers it. However, it’s always important to search the Canadian Trademark Database to ensure the trademark you want to register won’t be confused with an existing trademark. 

How long does trademark protection last?

Trademark registration lasts for 10 years and can be renewed every 10 years for a fee.

Trademarks in Quebec 

Trademark rules are slightly different in Quebec than the rest of Canada. In Quebec, trademarks cannot be displayed on real estate in a language other than French. According to Quebec’s Regulation respecting the language of commerce and business, trademarks on real estate must have a sufficient presence of French.

Conclusion 

Intellectual property is valuable and should be protected. Be sure to register an original work to be able to prove copyright ownership, apply for a patent to maintain exclusive use of your invention, and register a trademark for the right to its exclusive use.


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