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An Analysis: Trademark v/s Copyright

The word "intellectual property" denotes a variety of different forms of intellectual works for which the author is granted certain property rights by the law. The legislation that has been established around the notion of "Property" has made it clearly evident that property doesn't really simply include material possessions like a residence, a vehicle, furniture, money, investments, etc. and that these things are not the only types of property that are protected by the law.

The word "intellectual property" refers to a variety of intangible assets that have been legally recognised and are thus protected against infringement by anybody other than their true owner or an authorised person by such owner.

The exclusive rights for an inventor's or creator's valuable innovation or production are granted by the intellectual property rights (IPR), which are intangible in nature. The current globalisation environment places IPR at the centre of international trade and daily life. These rights encourage innovation by granting recognition and financial gain to the creator or innovator, but the economy might be hampered by a lack of knowledge of IPR, its inefficient execution & nation's technological and societal advancements.

The owner of such intangible assets/works have been awarded and vested with such exclusive rights under the IP Law. These include musical, literary, and creative work; new discoveries; & terms, words, symbols, and designs, among other intangible assets. The broad four basic types of intellectual property are patents, trademarks, copyrights, and designs rights, however their range is extending with time.


Copyright safeguards the original work of authors such as books, music, plays, pantomimes, and choreography, artworks in the visual and performing arts, as well as computer software and sound recordings in general and in particular the following creative works are protected by copyrights:
  • Literary and scholarly works include plays, novels, poetry, newspapers, pamphlets, magazines, journals, and other publications.
  • Songs, instrumental music, choruses, solos, bands, orchestras, etc. are examples of musical labour.
  • Artistic creations: including paintings, drawings, sculptures, buildings, and ads, among others.
  • Photography projects, such as fashion or event photography, landscapes, or portraiture.
  • Movies, drama, documentary, newsreels, theatrical presentations, television broadcasts, cartoons, videotapes, and DVDs are all considered motion pictures.
  • Computer programmes, software, and the databases that support them, as well as charts and technical drawings.

It is pertinent to know that only authority to alter, distribute, perform, produce, exhibit, and duplicate a work is granted to the holder of a copyright.

The creation must be in a physical means of expression, like words on paper or music notation recorded on a sheet, in order for it to be protected by copyright rules. Since one immediately acquires copyright upon completion of work by way of creation, copyright registration is not required. However, a copyright registration is necessary to give one's work the adequate protection it needs and to reduce the likelihood of abuse and unlawful use.

The essence of Section 22 of Copyrights Act,1957 which provides that "Term of copyright in published literary, dramatic, musical and artistic works.�Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until 1[sixty years] from the beginning of the calendar year next following the year in which the author dies." [1]

According to the court, the foregoing provision establishes that a person's copyright does not expire after their lifetime. In reality, it continues for another 60 years. The Court next focused on the definition of adaptation as provided by the Copyright Act, which specifies that any conversion of another person's work into one's own would come within the above mentioned definition.[2]


Ancient cultures used trademarks previously. Around 3000 years ago, Indian craftsmen began engraving their mark on jewellery and other works of art. The trademark has become a crucial element in the current world of global trade as a result of industrialization. A trade mark is a distinguishing symbol or emblem that indicates that a certain product is created or offered by a certain person, business, or industry.

Service marks, like trademarks, set apart businesses that offer services from their rivals. A firm may use a variety of trademarks to identify its various goods, but it also uses its trade name to set itself apart from other businesses.

Trademarks assist businesses in building their brand awareness, reputation, and consumer trust. When it is impossible to rapidly evaluate a product or service to judge its quality, buyers frequently rely on trademarks. In order to stand out from the competition, a certain demographic of buyers places a high value on brand prestige, even for products of comparable quality.

To differentiate one company or service from another, a trademark or service mark may be made up of words (such as a company name, surnames, geographical name, slogan, etc.), letters, numbers, drawings, logos, phrases, images, designs, or any combination of these components.

According to the Indian Trademarks Act, trademarks can be any mark that is unique, or able to differentiate the products and services of one venture from those of another, and that can be represented graphically. There is no need to restrict the validity of trademarks because they do not give any exclusive rights that may be used for exploitation.

However, if there were no time restriction, there would be an excessive amount of registered trademarks that would be useless. The original term of a trademark registration in India is for 10 years, after which it must be periodically renewed.

At the Trade Mark Registry Office in Mumbai (the main office), Delhi, Kolkata, Ahmadabad, and Chennai, the applicant may submit an application for trademark registration.

A registered trademark is infringed upon when another party uses it for identical or confusingly similar products and services. The phrase "passing off" can also be used for similar types of operations when a fraudulent product is sold to a consumer under the belief that it is a real product in cases of infringement. The "passing off" product is highly bad for business since it deprives legitimate producers of market share and defrauds customers by giving them inferior goods.

Without being aware of the "passing off," the consumer may pick another trade mark in the future under the mistaken assumption that the manufacturer is making subpar goods after getting a subpar product. The trade-used imitation item is sometimes referred to as a "deceptive product".

Difference Between Trademark v/s Copyright

Trademark Copyright
Trademarks protect things that set one company apart from another. Original works are protected by copyright.
Trademarks are frequently used by individuals, companies, and non-profit organisations to protect names for products and services, company names, phrases, and other identifiers. Copyright is frequently used to protect artistic works, such as sound recordings and motion pictures, as well as literary, musical, and theatrical works.
A trademark is created by regular usage of symbols in the conduct of the business. Copyright is created immediately upon the production of creative work.
A trademark remains active as long as it is being used. A copyright lapses after a predetermined amount of time.
Software, concepts, and ideas cannot be protected by trademarks. However, an idea, piece of software, or item's distinctive name might be protected by a trademark. Programs, software, databases, could all be registered as "literary works" under the Copyright Act.
The original term of a trademark registration in India is for 10 years, after which it must be periodically renewed. According to the usual norm, copyright lasts for 60 years. The 60-year window for original songs, plays, artwork, and other creative works starts the year after the author's passing.

  1. Section 22, The Copyrights Act, 1957
  2. Crazy Concepts and Mazes Pvt. Ltd. & ors. V/s N. Venkta Yaydari Rao & ors., 2022 LiveLaw (Guj) 214

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