Infringement (noun): “the action of breaking the terms of a law, agreement, etc.; violation.”
At its core, breaching a business’s intellectual property is both damaging and morally irresponsible. Copyright and/or trademark infringement can leave a lasting mark on a company’s reputation, especially when the misrepresentation of a brand is directly tied to safety and health hazards. As creators of all kinds – designers, writers and otherwise – we have a responsibility to understand infringement, to know the warning signs and avoid the perpetuation of such motives.
In this blog, we’re going to break down what constitutes copyright and trademark infringement. If you want more of a baseline on the different forms of intellectual property, check out a previous post we made here.
Understanding Copyright (©)
You’re most likely more familiar with copyright than trademark infringement – probably because the former encompasses material creative works such as art, film, books, dramatic, music, recordings, and more.
A copyright means you have rights to distribute or make copies of creative works like the ones just mentioned. It’s how you see Disney merchandise at Target; it’s how you’re able to buy paintings at furniture stores; the list goes on. (Keep in mind though that concepts aren’t under a copyright umbrella, so your short film about a water couch is only protected in the realm of what you create – not the idea itself.)
When you create something, you automatically hold the copyright for it – as well as the ability to distribute it publicly.
In the United States, much of the protection provided by copyright laws was fully realized with the 1976 Copyright Act. You can view all the Copyright Law of the United States here (yes, copyright laws change from country to country, and it expires 70 years after the author’s death, which is why many classical books are open forum to be used in any capacity).
From this line of reasoning, it’s obvious that unauthorized distribution or profit made off of someone else’s work without their permission is directly tied to copyright infringement. You can grant permission for someone else to use your work under the premise of a license or assignment.
The lines get blurred, however, when you run into “fair use” and “derivatives” of a creative work:
- Fair use is when you’re taking an existing work and copying it for “transformative” purposes, such as a commentary or parody. There’s no hard line in the sand to define what’s fair use and what isn’t, as it’s varied from court case to court case.
- Derivative works are new works based on already existing pieces, such as translations, remixed music, art reproductions, abridgements, etc.
Understanding Trademarks (™ and ®)
Before diving too far in, it’s important to note the difference between ™ and ®. The ™ symbol is for companies that haven’t yet registered their brand name with the United States Patent and Trademark Office (USPTO), or already have and are waiting acceptance.
The ® symbol means a trademark is registered with the USPTO. This provides protection for your brand and the ability to “obtain treble damages against infringers.”
The big difference between copyrights and trademarks is the latter has to do with words, symbols and colors that are associated with your brand. So while copyright has to do with protecting the distribution of your creative works, trademarks protect the linkage between your logo and your brand – its distinctiveness.
It’s how you associate Honey Nut Cheerios with a bumblebee, honey dipper and oranges and yellows; it’s also how you think of a check mark when you hear Nike. These are distinctive associations and marks that are made to set your brand apart.
You have to register for a trademark; it’s not automatically granted to you. This process can take months, but once it’s established, as long as you renew, it never has to expire.
(One thing of note: beware, as once a brand becomes generic, any and all trademarks are invalid.)
Much like copyright infringement, trademark infringement has legal repercussions if breached. However, it’s more brand and business-centric than copyright – that’s because it centers around someone’s ability to identify a brand with a product or service.
Does a logo or brand confuse the average consumer, and make them associate it with another? If so, you’re walking in infringement territory.
Is your brand being diluted? If you’re using a trademarked name and connecting it to something random, you’re also walking a dangerous path of infringement. For instance, if you used a derivative of Starbucks and made it “Starbux gym,” it impedes the association between Starbucks and coffee and affects its brand.
Know Your Infringements
It’s a slippery slope when infringing upon a brand’s intellectual property. Sometimes, while it can be difficult to ascertain, it’s always better to err on the side of caution. If you’re even the slightest bit doubtful, make sure you have the backing of a corporate attorney or seek other legal counsel before moving forward.
It’s not worth being trapped in a lawsuit or battle that could last years. Equip yourself with the right tools to shut counterfeiters down – learn more here.