Learn More about the Law

Trademarks/Copyright

Question:

I have written a wonderful childrens' story and want to publish. Is this a trade mark issue or a Copyright issue? What is the difference?

Answer:

If we write a piece of music, a book, or a software program, those items are creations that can be protected by copyright. They are not simply phrases or logos (or the combination of the two) which we would trademark. They are intellectual materials that we would register for copyright protection.

The protection of copyright exists, technically, without registration (just as a certain protection for trademarks does) but it is a matter of degree. If you wish absolute certainty and the protection of the law as it is set out in the copyright legislation, you should register your copyright in somewhat the same manner as you register your trademark. Copyright protection extends to foreign countries through certain international treaties to which most of the countries of the world are signatories. As a result, it may not be necessary to register your copyright in each country in which you intend to conduct sales. Registration of copyright is advised. In the event of a dispute, your certificate or registration proves your ownership of the copyright to that particular music or software, etc. In Canada, that certificate establishes a presumption that you as the registered owner have absolute rights to the item.

When you obtain a trademark for an item you use the trademark logo to advise everyone that it is in fact a trademark. The trademark logo is as follows: ™. Similarly, when you have copyrighted an item, you use the copyright logo. The copyright logo is as follows: ©, followed by the name of the copyright owner and the year of its publication. Use of the logo on your materials is particularly important if you wish to distribute your materials outside the country. It is also advisable, of course (while not specifically necessary), to use it inside the country as well.

Unlike copyright, the exclusive rights of the owner of trademark do not apply outside of Canada. That is why we recommend that your trademark be registered in each country where you intend to do business. A simplified procedure for registration exists within the European Union. You can make one single application for registration at the Office for Harmonization in the Internal Market (OHIM) which will provide to you a community trademark which will be protected throughout the European Union Market.

In all cases, it is strongly recommended that you retain the services of a trademark agent. [R. Peter Muttart, Q.C. is the Trademark Agent Partner at Muttart Tufts Dewolfe & Coyle.]

For more information on this or any other legal concerns please contact us.

Muttart Tufts Dewolfe & Coyle
Barristers & Solicitors
20 Cornwallis St.
Kentville, Nova Scotia
B4N 3X3, Canada
(902) 678-2157