Comparison with patents, designs and copyright

Trademarks, patents and designs collectively form the famous and big set of intellectual property known as industrial property.

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While trademark law core function seeks to protect indications of the commercial source of products or services, generally speaking patent law seeks to protect new and useful inventions with novelty and inventive features as a must, and generally registered designs law function is seeking to protect the look or appearance of a manufactured subject of design case. Trademarks, patents and designs collectively form the famous and big set of intellectual property known as industrial property because they are typically created and used in an industrial and consequently in the commercial context.

By comparison, copyright law generally seeks to protect original literary, artistic and other innovative works. Continued active use and re-registration can make a trademark perpetual, whereas copyright usually lasts for the duration of the author's lifespan plus 70 years for works by individuals, and some restricted time after creation for works by bodies corporate. This can lead to confusion in cases where a work passes into the public domain but the character in question remains a registered trademark.

Although intellectual property laws such as these are theoretically distinct, more than one type may grant protection to the same article. For example, the particular design of a bottle may qualify for copyright protection as a non-utilitarian [sculpture], or for trademark protection based on its shape, or the 'trade dress' appearance of the bottle as a whole may be a subject of protection. Titles and character names from books or movies may also be protectable as trademarks while the works from which they are drawn may qualify for copyright protection as a whole.

Drawing these differences is vital but often challenging for the courts and lawyers, especially in jurisdictions where patents and copyrights when they pass into the public domain depending on the jurisdiction. Unlike patents and copyrights, which in theory are granted for one-off fixed terms, trademarks remain valid as long as the owner actively uses and defends them and continues maintaining their registrations with the competent authorities. This often involves payment of a periodic renewal fee.

A trademark can be 'abandoned' or its registration can be cancelled or revoked if the mark is not continuously used as a trademark must be used in order to maintain rights in relation to that mark. By comparison, patents and copyrights cannot be 'abandoned' and a patent holder or copyright owner can generally enforce their rights without taking any special action to maintain the patent or copyright. Additionally, patent holders and copyright owners may not necessarily need to actively police their rights. However, a failure to bring a timely infringement suit or action against a known infringer may give the defendant a defense of implied consent or estoppels when suit is finally brought

 

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