Copyrighting & Trademarking

This thread got me thinking.

What is copyrighting and trademarking? / What is the definition of copyright and trademarks?

How expensive is it to acquire either?

What is the big difference between the two?

Request: Please don't turn this thread into a heated debate. I'd like to actually learn something and would be dismayed if it got locked.

In the USA and most countries, everything you write is atomatically copyrighted. Normally, you own copyright. In USA, UK and other "Anglo-Saxon" countries, work done in the course of your employment (US = "work for hire") is automatically copyrighted by your employer. Freelance authors own the initial copyright in their works, they can sell copyright in eg a magazine article to the publisher but they'll retain copyright in preliminary/prior versions since copyright only flows 'downhill'.
Copyright prevents any unauthorised reproduction of a work, with limited fair-use exceptions.

A trademark is a mark used to denote goods or services, used in the course of trade (US = "commercial use"). Trade mark law basically prevents other people using your mark in connection with related goods and services - you can't infringe a mark through non-commercial use, ie I can write "McDonalds" or even "McDonalds sucks" here and not infringe the McDonalds mark. I can even run a business called McDonalds as long as people don't think it's the burger company, and (in USA) as long as I'm not diluting the value of their "famous mark".

Normally you have to Register a trade mark. However unregistered marks may receive protection, in the USA I believe they can be protected as trade marks at State level (not Federally). In the UK they can be protected via the law against "Passing Off"; and in other jurisdictions via Unfair Competition law.

Also, trademarks have to be actively used and protected by the holder, else they risk being considered 'abandoned', in which case someone else could come along and register it. It's also possible for them to become considered a 'generic' term -- the most famous example being 'aspirin', which used to be a trademark of Bayer. That's why the Xerox folks get so upset when they hear you say you're going to xerox something instead of photocopy it, or why you hear 'Band-Aid brand bandage strips' in the commercials.

Copyright, on the other hand, is pretty much zero-maintenance.

Rodrigo Istalindir said:

Also, trademarks have to be actively used and protected by the holder, else they risk being considered 'abandoned', in which case someone else could come along and register it.

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Certainly use of the mark is important - I'm not sure how important enforcement really is in the USA, in the sense of judges saying "You haven't sued enough people this year so you lose the mark"? Certainly in the UK my impression is that as long as you register the mark, use the mark, and tell people it's your mark, it won't be voided just because you haven't sued everyone else who uses it. The important thing is whether the mark is capable of distinguishing your goods/services - obviously if lots of other businesses use the same mark for the same goods, in the same area, that can make it non-distinctive, but if one business uses the mark in Cornwall (or Florida) and another in Aberdeen (or New Mexico) I don't think the mark loses its distinctiveness in region A just because you're not suing users in region B.

Another point - if I write "Compatible with the D&D game" on my RPG product, I'm not claiming to be the publisher of the D&D game, this is nominative/descriptive use of the "D&D" trade mark and isn't infringing - though the more rabid sort of in-house lawyers may see things differently.

S'mon said:

Certainly use of the mark is important - I'm not sure how important enforcement really is in the USA, in the sense of judges saying "You haven't sued enough people this year so you lose the mark"?

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It's become increasingly litigious, partly due to the way that the Internet makes the geographical disctinctions less meaningful. 20 years ago, Initech the widget-maker in Iowa and Initech the gadget-maker in Florida probably wouldn't even known of each others' existence. But now, not only do they know about each other, but it would be easy for someone in New York to mistake them.

Combined with the 'aspirin' case, and the obscene amounts of money companies spend developing a brand name (Intel with Pentium, for example), active enforcement has become much more common. It's pre-emptive -- if you don't litigate and you lose the trademark, you can't get it back. If you send obnoxious C&D letters (which are cheap if you have in-house lawyers) to anybody and everybody, then the judge can't ding you on being insufficiently attentive to the trademark.

S'mon said:

In USA, UK and other "Anglo-Saxon" countries, work done in the course of your employment (US = "work for hire") is automatically copyrighted by your employer.

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This is dangerous and potentially incorrect advice. In fact, there are fact scenarions where the presumptions at law are different as between the USA and Canada/England on this point.

If you aren't a lawyer - you ought not to be posting on a thread like this - and if you are - you ought to know better.

Takes his own legal advice and stops posting.

Given that in the other thread, S'mon said "Disclaimer: I teach IP law to the next generation of blood-sucking roaches... ", I suspect it's likely that he is a lawyer, and knows what he's talking about.

Copyright Act ( R.S. 1985 said:

(3) Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.

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from http://laws.justice.gc.ca/en/C-42/39253.html#rid-39351

Copyright Law of the United States of America said:

(b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

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from http://www.copyright.gov/title17/92chap2.html

S'mon said:

Normally you have to Register a trade mark. However unregistered marks may receive protection, in the USA I believe they can be protected as trade marks at State level (not Federally). In the UK they can be protected via the law against "Passing Off"; and in other jurisdictions via Unfair Competition law.

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Unregistered marks, sometimes referred to as "common law" trademarks, have some protection under federal law in the U.S.

Steel_Wind said:

This is dangerous and potentially incorrect advice. In fact, there are fact scenarions where the presumptions at law are different as between the USA and Canada/England on this point.

If you aren't a lawyer - you ought not to be posting on a thread like this - and if you are - you ought to know better.

Takes his own legal advice and stops posting.

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I just teach the stuff, I'm not a lawyer. Anyway this statement is generally true AFAIK
Obviously it does vary a bit between eg US and UK but they#re much more similar than eg Germany.

Well I am a lawyer, and there are exceptions to this in terms of contracting for an application and the rights to source code in the USA.

As I said, EnWorld is not the place to be requesting legal advice (or posting it).