Differences between trademark right and copyright

I designed a character, but it is protected by copyright, so I don’t have to obtain a trademark registration. Right?

No. Under the Japanese Trademark Law, anyone can obtain a trademark registration for another person’s work without permission.

Oh, really? Can you give me more detailed information?

目次 Index
  1. Logos and characters are sufficiently protected by copyright?
  2. What are the differences between trademark right and copyright?
    1. Difference in Generation of Rights
    2. Difference in Exercise of Rights
    3. Difference in Maintenance of Rights
  3. What are the cases where it is better to obtain a trademark registration for a work in addition to the protections afforded by copyright to the creator of the work?
    1. Logo – first consider trademark registration
    2. Reinforcing Copyright of Character Design with Trademark Right

Logos and characters are sufficiently protected by copyright?

Both trademark right and copyright, like patent right, design right, etc., are rights belonging in the category of intellectual property rights as rights related to intellectual properties.

Hereinafter, this article will first explain the differences between trademark right and copyright that are present confused among intellectual property rights while comparing overviews thereof, and next this article will present the cases where it is better to obtain a trademark registration for a work In addition to the protections afforded by copyright to the creator of the work.

What are the differences between trademark right and copyright?

Difference in Generation of Rights

Trademark right is a right granted to a person who files an application for trademark registration with the Patent Office. It costs to file a trademark application and obtain a trademark registration. Trademark right is generated when the trademark is registered with the Patent Office. On the other hand, copyright is a right that is generated to the author upon completion of a work (text, painting, music, etc.) and there is no particular registration procedure.

Difference in Exercise of Rights

Trademark right is an exclusive right to use a trademark within the scope of the designated goods and services, which is officially approved and registered after examination of the contents thereof at the Japan Patent Office. Therefore, a request for injunction or compensation for damages can be filed regardless of whether or not an unauthorized user knew the existence of the trademark right. On the other hand, in case of copyright, even if a work similar to the work of a copyright holder, the copyright holder cannot exercise the right to claim damages for copyright infringement if the other party did not know the existence of the copyright holder’s work without negligence. Please note, however, that even if the other party did not know the existence of the copyright holder’s work without negligence, the copyright holder may still demand an injunction.

Difference in Maintenance of Rights

Trademark right expires after 10 years from the date of trademark registration. However, the right can be held semi-permanently if an application for renewal registration is filed under the trademark renewal system. On the other hand, there is no such renewal system for copyright and, basically, once a certain period of protection has elapsed after the author’s death, anyone can freely use the work.

What are the cases where it is better to obtain a trademark registration for a work in addition to the protections afforded by copyright to the creator of the work?

Logo – first consider trademark registration

Although a logo can be considered to be a work of art as a type of works, it is essentially a “mark”, namely a “trademark like a character mark.

Therefore, it would be better to consider registering a trademark.

If you are already using the logo in your business and your customers recognize it to some extent, it can be said that a trademark for the logo, as a brand, is very much worthwhile to be registered. Even if you are not yet using the logo and if you are likely to continuously use the logo in the future, it is worthwhile to be registered as a trademark as soon as possible.

Reinforcing Copyright of Character Design with Trademark Right

A Character design is more of a work of art in nature, and it is often the case that it should be protected by copyright rather than trademark registration. Then, if you are not sure about protecting the design with copyright, it may be an effective means to obtain a trademark registration in the context of reinforcing the right.

For example, if the character design is frequently displayed on product packaging or websites, it is worth considering registering the trademark as a brand since it can also serve as a kind of trademark.

In other cases, even if it is difficult to strictly determine whether a character design is a trademark or not and if the character design is of great economic value, the trademark sometimes may be registered just in case as a related matter (for example, Nintendo Corporation’s Pokemon character design, LINE Corporation’s LINE Stamps’ character designs, etc.).

Ah, I see!

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supervisor
Supervisor for the article:
HARAKENZO WORLD PATENT & TRADEMARK
大阪法務戦略部長 八谷 晃典
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