When business owners talk about protecting their brand, trade marks and copyright often get lumped together. They are two very different rights. They protect different things, they come about in different ways and they last for different lengths of time. Knowing which one covers which part of your brand helps you put your money where it counts, and avoid gaps you only find out about when someone copies you.
What this covers
What trade marks and copyright each protect, and how each right comes about
Which parts of your brand fall under each right, and where the two overlap
What each right lets you do when someone copies your brand
What a trade mark protects
A trade mark is a sign that distinguishes your goods or services from those of other traders. In everyday language, it is your brand. It can be a word, a phrase, a logo, a picture, a shape, a sound, a colour or even a smell.
The job of a trade mark is to act as a badge of origin. When customers see it, they know the product or service comes from you and not from someone else.
In Australia, trade marks are governed by the Trade Marks Act 1995 (Cth). The Act only gives statutory rights to trade marks that are registered with IP Australia. When you apply, you list the goods and services you use the mark for, or intend to use it for, and your protection is tied to that list. Getting that list right matters, and we cover it in detail in our guide to choosing the right goods and services specification.
What copyright protects
Copyright protects the expression of an idea, not the idea itself. It covers original literary, dramatic, musical and artistic works, along with things like sound recordings, films and broadcasts.
For brands, the most relevant category is artistic works. That includes logos, packaging artwork, graphic designs, photographs and artistic patterns.
Copyright does not protect a concept, a style or a method. It only protects the particular way an idea has been expressed and recorded. For copyright to exist in a work, three things need to be true:
It must be original, meaning it came from the author through their own independent intellectual effort
It must have an identifiable human author
It must be recorded in material form, such as a drawing, a digital file or a printed page
How each right comes about
This is one of the biggest practical differences between the two.
Trade marks need registration. An unregistered brand can sometimes be protected through a passing off claim or a claim under the Australian Consumer Law, but the statutory protection that comes with a trade mark only applies once the mark is registered. Registration is also territorial. An Australian registration protects your brand in Australia, and you need to seek registration separately in each other country where you want protection. Our guide to international trade mark protection explains how that works.
Copyright is automatic. Copyright arises as soon as an original work is first recorded in material form. There is no copyright register in Australia. You do not need to file anything, pay a fee or add a copyright notice to be protected.
How long each right lasts
Trade marks: a registered trade mark lasts for 10 years from the filing date. It can be renewed for further 10 year periods, as many times as you like, so a trade mark can last indefinitely. The catch is use. If a trade mark has been registered for a continuous period of three years and the owner has not used it in good faith in Australia at any point in that period, another party can apply to have it removed from the Register for non-use. Use by someone the owner has authorised counts as use by the owner, and the owner can oppose a removal application. We explain renewals and non-use in more detail in how long a trade mark lasts in Australia.
Copyright: copyright in literary, dramatic, musical and artistic works generally lasts for 70 years after the death of the author. Unlike a trade mark, copyright cannot be lost through non-use.
Which parts of your brand fall under each right
Brand names: trade mark. A single word or short name is unlikely to be substantial or original enough to be protected by copyright.
Slogans and taglines: trade mark. Short phrases generally fall outside copyright for the same reason.
Logos: both. A logo can be registered as a trade mark and, as an artistic work, be protected by copyright at the same time.
Packaging artwork, photographs and other brand imagery: mainly copyright, as artistic works. Some of these elements may also be registrable as trade marks where they work as a badge of origin.
In short, the parts of your brand customers use to recognise and find you, especially your name and your slogan, generally need a registered trade mark. Copyright will not do that job.
Where the two overlap: your logo
Logos are where the two rights meet, and they each do something different.
Copyright is infringed when someone does one of the acts reserved to the copyright owner without permission, such as reproducing the work or communicating it to the public. Its focus is the artwork itself.
A registered trade mark is infringed when someone uses a substantially identical or deceptively similar mark without authorisation. That means it can reach a competitor's look-alike logo or name, not only a straight copy of your artwork.
Relying on copyright alone for your logo leaves your brand name unprotected and gives you a narrower tool to work with. Registering the logo as a trade mark as well gives you a right that is aimed at the confusion you are worried about.
You can search for trade marks, but not for copyright
Trade marks are registered, so IP Australia keeps a public Trade Marks Register. Before you commit to a new name or logo, you can search it for existing marks that might conflict with yours. We walk through that process in how to check for obvious trade mark risks before you apply.
There is no copyright register, so there is no equivalent way to run a meaningful copyright clearance search on a new logo or design. That makes it hard to confirm that a proposed design does not infringe someone else's artwork, and it is one more reason the trade mark side of brand clearance deserves proper attention.
What each right lets you do when someone copies you
A registered trade mark gives you the exclusive right to use the mark, and to authorise others to use it, for the goods and services it is registered for. It also makes enforcement easier. If your brand is unregistered, you would usually need to rely on passing off or misleading conduct under the Australian Consumer Law, and both carry a heavier evidentiary burden than a registered trade mark infringement claim.
Registered trade mark owners can also lodge a notice of objection with the Department of Home Affairs. This allows the Australian Border Force to seize goods at the border that are suspected of infringing the registered mark.
Copyright lets you stop others from reproducing your work or communicating it to the public without your permission. For brand assets, that usually means stopping someone from copying your logo artwork, packaging design or photographs.
Comparative advertising shows how differently the two rights work. A competitor can generally refer to your trade mark to compare their products with yours without infringing it, provided the ad makes clear there is no trade connection between you. That exception only applies to trade marks, not copyright. In practice, a competitor may be able to name your brand in plain text, but they cannot reproduce your logo artwork without your permission.
So which one do you need?
For most businesses, the answer is both, doing different jobs.
Copyright gives you automatic protection for your logo artwork and other creative brand assets from the moment they are created, with no filing and no renewals. A registered trade mark protects the signs customers use to identify you, including your name and slogan, gives you a public, searchable record of your rights and makes it easier to act when someone uses a confusingly similar brand.
Names and slogans are unlikely to be protected by copyright, so registering them as trade marks is usually the only way to get statutory protection for them. If your logo is central to how customers recognise you, it is worth registering that too.
Key takeaways
Trade marks protect signs that tell customers who a product or service comes from. Copyright protects original creative works such as artwork, photographs and text.
Trade marks need to be registered with IP Australia to get statutory protection. Copyright arises automatically, and there is no copyright register in Australia.
A registered trade mark lasts 10 years at a time and can be renewed indefinitely, but it becomes vulnerable to removal if it goes unused for a continuous three year period while registered. Copyright generally lasts 70 years after the author's death and is not lost through non-use.
Brand names and slogans generally need trade mark protection. Logos can be protected by both rights at once.
A registered trade mark makes enforcement easier than relying on passing off or the Australian Consumer Law, and gives you access to border protection.
Related articles
Filing & Applications: How to Check for Obvious Trade Mark Risks Before You Apply
Renewals & Maintenance: How Long Does a Trade Mark Last in Australia?
Filing & Applications: How to Choose the Right Goods and Services Specification for a Trade Mark
Not sure which parts of your brand are protected? Contact Plummark and we can help you work out what to register, and where.
