COPYRIGHT & TRADEMARK

What is a Trademark?

A trademark is either a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services of one party from those of others. A trademark has several functions. The primary function is identifying the origin of the goods to which the trademark is affixed. This is reflected in the statutory phrase "to identify and distinguish." It is not required that the purchaser know the identity of the source of goods as long as he or she recognizes that all goods bearing a particular trademark originate from a common, even if anonymous, source.

In a trademark infringement action, the plaintiff must prove by a preponderance of the evidence that defendant's use of the alleged infringer's mark will create a likelihood of confusion, mistake or deception in the minds of the relevant public.

Several factors are analyzed in determining whether there is a likelihood of confusion, including the strength of the plaintiff's mark, the similarity between the plaintiff's and the defendant's marks, the degree to which the plaintiff's and defendant's products or services are related, the likelihood that the plaintiff will expand its business into the field of the defendant, the defendant's good faith in adopting its mark, evidence of actual confusion, the sophistication of the buyers, and the quality of the defendant's product. In any given case, some factors will weigh more heavily than others. Proof of bad faith can be decisive since one who has set out to deceive may be presumed to have succeeded, no matter how inept the attempt.
 

What is a copyright?

A copyright protects an author's original expression of an idea. The Copyright Act of 1976 states that the items of expression can include literary, dramatic, and musical works; pantomimes and choreography; pictorial, graphic and sculptural works; audiovisual works; sound recordings; and architectural works. An original expression is eligible for copyright protection as soon as it is fixed in a tangible form.  A copyright protects 1) the original creations by  the author, 2)expressed in any manner that can enable the material to be conveyed and 3) is subject to comprehension directly by the senses, through copying or other communication, with or without the aid of equipment  Being copyright protected can ensure an individual that his/her promotion of works and knowledge will be encouraged without concern for financial loss or loss of credit. A work is protected by copyright for the author's life plus 50 years. If the work is published or registered by an anonymous author or under a pseudonym, the copyright protection lasts 75 years from the publication date.