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Trade-marks/Copyright

Question:

I have written a wonderful children's 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 trade-mark. 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 trade-marks 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 trade-mark. 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 trade-mark for an item you use the trade-mark logo to advise everyone that it is in fact a trade-mark. The trade-mark 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 trade-mark do not apply outside of Canada. That is why we recommend that your trade-mark 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 trade-mark which will be protected throughout the European Union Market.

In all cases, it is strongly recommended that you retain the services of a trade-mark agent. Peter Muttart, Q.C. is our Trade-mark Agent Partner.

muttarts law firm
Kentville, Nova Scotia, Canada
t. 902.678.2157 • f. 902.678.9455

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